# Carter v. Slatery

> District Court, M.D. Tennessee · August 29, 2023

URL: https://www.frixlaw.com/law-library/cases/10669698

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** August 29, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

TIMOTHY DAMON CARTER #160457, )
)
Petitioner, )
) NO. 3:20-cv-00483
v. )
) JUDGE CAMPBELL
HERBERT H. SLATERY, III, )
)
Respondent. )

MEMORANDUM
Petitioner Timothy Damon Carter filed this pro se habeas corpus case under 28 U.S.C. §
2254. The operative petition is an Amended Petition filed by Petitioner in August 2021. (Doc. Nos.
37 & 37-1 to 37-6). Respondent filed the state court record (Doc. Nos. 19–22)1 and an Answer.
(Doc. No. 38). Petitioner filed a Reply (Doc. No. 43) and a supplement. (Doc. No. 49).2 Petitioner
also requested transcripts for three state court hearings that, according to Respondent and as far as
the Court can tell, have not been transcribed. (See Doc. No. 23 at 2–3). The Court denied this
request but explained that it may revisit that ruling if it found the requested transcripts to be
relevant to resolving Petitioner’s claims. (Doc. No. 31 at 2).
The Court has now considered Petitioner’s claims, and for the reasons explained below,
the Court rules as follows: all but two of Petitioner’s claims will be DENIED; two claims will be
held in abeyance to give Petitioner an opportunity to address the Court’s conclusion that they
should be denied as procedurally defaulted; and the Court adheres to its prior ruling denying
Petitioner’s request for transcripts of the three un-transcribed state court hearings.

1 Petitioner filed additional documents (see Doc. Nos. 27, 29), and the Court opted to consider them
as appropriate alongside the Amended Petition. (See Doc. No. 28 at 3; Doc. No. 31 at 3).

2 This supplement duplicates a prior filing (Doc. No. 47) that is, itself, substantively identical to
I. BACKGROUND
This case has straightforward facts but a convoluted procedural history, owing to
Petitioner’s tendency to cycle through attorneys. It started with stolen comic books:
This case arises from the theft of a comic book collection from a residence in La
Vergne, Tennessee in April 2010. [Petitioner] was identified as a suspect in the
theft when he sold or attempted to sell some of the comic books at area stores.
During the investigation, law enforcement officers went to [Petitioner’s] apartment
and, upon seeing the stolen comic books in the backseat of a vehicle registered to
[Petitioner], impounded his vehicle to the police department. After obtaining a
search warrant, law enforcement officers searched [Petitioner’s] vehicle and
recovered a handgun.

State v. Carter, No. M2014-01532-CCA-R3-CD, 2016 WL 7799281, at *1 (Tenn. Crim. App.
Mar. 8, 2016) (summary by Tennessee Court of Criminal Appeals (TCCA) on direct appeal).
Criminal proceedings commenced in Davidson County, with a grand jury indicting
Petitioner on two counts: (1) theft of property valued at least $10,000 but less than $60,000; and
(2) being a felon in possession of a handgun. (Doc. No. 19-1 at 4–6). The court appointed the first
of four attorneys who would represent Petitioner in the trial court, Jessamine Grice. (Id. at 7).
Attorney Grice represented Petitioner for a short time beginning on January 5, 2011, until she was
relieved some time before March 25, 2011. The court appointed the second trial counsel, Graham
Pritchard, who represented Petitioner until the court granted his oral motion to withdraw on March
25, 2011. (Id. at 8). “The record contains little documentation regarding the bases for the removal
of Ms. Grice and Mr. Prichard.” Carter, 2016 WL 7799281, at *1.
The court then appointed attorney number three, Paul Walwyn. Attorney Walwyn
represented Petitioner from March 25, 2011, until the court ultimately granted his third motion to
withdraw on May 16, 2012. Id. at *1–2. During this approximate fourteen-month span, Attorney
Walwyn filed an unsuccessful motion to suppress (Doc. No. 19-1 at 44–54) and the State obtained
a superseding indictment. (Id. at 143–45). The only change from the original indictment was an
increase in the value of the property for the theft charge to $60,000 or more. (Id. at 144).
Next came the fourth and final attorney, Jack Byrd. About two months after his
appointment, Attorney Byrd made an oral motion to withdraw, and the court denied it. (Doc. No.
19-9). Attorney Byrd then filed a motion to rehear the suppression motion. (Doc. No. 19-2 at 4–

8). While this motion was under consideration by the court, Attorney Byrd filed another
unsuccessful motion to withdraw. (Id. at 11–12). The court then denied the motion to rehear the
suppression motion. (Id. at 13–18). At that point, Attorney Byrd filed several motions on
Petitioner’s behalf in anticipation of a trial that was set to commence on November 5, 2012. (Id.
at 18–30; Doc. No. 21-1 at 31–44). On October 16, 2012, however, Attorney Byrd filed a third
motion to withdraw. (Doc. No. 19-2 at 35–36). And on October 26, 2012, the court held a hearing,
granted the motion, and ruled that Petitioner would represent himself with Byrd as elbow counsel.
(Id. at 37). Trial was re-set for January 28, 2013. (Doc. No. 20-3 at 114).
Meanwhile Petitioner, now pro se, filed several motions on October 30, 2022, including

for a bill of particulars, to dismiss the indictment, to suppress evidence, and to disclose grand jury
materials. (Doc. No. 19-2 at 38–89; Doc. No. 20-15 at 10–16). There is no record of the court
ruling on these motions, but on January 25, 2013—three days before the scheduled trial—
Petitioner filed a motion to reappoint Jack Byrd. (Doc. No. 19-2 at 109–10). Trial was re-set again,
and Petitioner remained pro se until at least February 22, 2013, when he filed another motion
referencing the right to counsel. (Id. at 112–16). The court held a “brief hearing” and granted
Petitioner’s request to reappoint Attorney Byrd.3 (Id. at 121). At that point, trial was set for April
8, 2013. (Doc. No. 20-4 at 35).

3 The record does not contain a separate order memorializing this reappointment, but in open court
on April 4, 2013, the court described the reappointment process as follows: “[Petitioner] was in court just
On April 2, 2013, Petitioner left threatening voicemails on Attorney Byrd’s office phone
and told Byrd to file a motion to withdraw. (Doc. No. 22, manual filing rec’d Apr. 26, 2021). Byrd
complied. On April 4, 2013, the court held a hearing and ruled that Petitioner had forfeited his
right to counsel. (Doc. No. 20-3 at 165–91). The next day, the court entered orders detailing its
ruling (Doc. No. 19-2 at 117–22) and appointing Charles Walker standby counsel. (Id. at 123–24).

Trial commenced with Petitioner representing himself on April 8, 2013, and the jury found
him guilty as charged. (Id. at 125–26). Petitioner represented himself at sentencing, and the court
sentenced him as a career offender to an effective thirty-year sentence. (Id. at 198–99).
After sentencing, Petitioner agreed for counsel to represent him in the motion-for-new-trial
and direct appeal phases. (Doc. No. 19-13 at 24). The court appointed Jay Martin. (Id.; Doc. No.
19-2 at 200). Attorney Martin filed a motion for judgment of acquittal and a motion for new trial,
and the court denied them both. (Doc. No. 19-3 at 31–62).
At the outset of direct appeal, Attorney Martin withdrew due to a change in employment,
and Manuel Russ (“appellate counsel”) began representing Petitioner. (Doc. No. 20-15 at 63).

Appellate counsel filed the appellant brief, and the TCCA affirmed Petitioner’s judgments. Carter,
2016 WL 7799281. Appellate counsel also filed an application for permission to appeal in the
Tennessee Supreme Court, and the Supreme Court denied it. (Doc. Nos. 20-9, 20-10).
Petitioner then filed the first of three pro se state habeas corpus petitions. (Doc. No. 20-11
at 3–13). The court summarily denied it. (Id. at 48–51). Petitioner appealed, and the TCCA
dismissed the appeal for failure to prosecute. (Doc. No. 20-12). Petitioner’s second pro se state
habeas petition (Doc. No. 21-10 at 23–31) was summarily denied as well. (Id. at 33–35).

a couple of weeks ago where he said he didn’t want -- he did not want to represent himself because he had
represented himself and realized the difficulties with doing that. And I told him that Mr. Byrd then would
be representing him and he left the courtroom.” (Doc. No. 20-3 at 168). This reappointment is also reflected
in a letter from Attorney Byrd to Petitioner dated April 1, 2013, stating that the court “appointed [Byrd]
again to represent [Petitioner].” (Doc. No. 20-4 at 35).
Petitioner also filed a pro se petition for post-conviction relief. (Doc. No. 20-13 at 53–89).
The court appointed Elaine Heard to represent him (Doc. No. 20-15 at 57), but Attorney Heard
filed a motion to withdraw about three months later. (Id. at 89–90). The court granted the motion
and appointed Kara Everett. (Id. at 92). Less than six weeks later, Attorney Everett filed a motion
to withdraw as well. (Id. at 101–02). The court granted the motion and ruled that Petitioner had

again forfeited his right to counsel. (Id. at 104–05). Petitioner, now pro se, requested permission
to amend his post-conviction petition at a subsequent hearing (Doc. No. 20-20 at 7, 11), and the
court gave him ten days to do so. (Id. at 18). Petitioner filed a “motion to amend additional issues
for Petitioner’s post-conviction.” (Doc. No. 20-17 at 4–32). The court held an evidentiary hearing
(Doc. Nos. 20-21, 20-22) and denied relief. (Doc. No. 20-16 at 26–72). Petitioner represented
himself on post-conviction appeal, and the TCCA affirmed the denial of post-conviction relief.
Carter v. State, No. M2018-00061-CCA-R3-PC, 2019 WL 1110308 (Tenn. Crim. App. Mar. 11,
2019). The Tennessee Supreme Court denied permission to appeal. (Doc. No. 21-9).
Then came Petitioner’s third and final state habeas petition. The court summarily denied

the petition (Doc. No. 20-10 at 126–28), the TCCA affirmed, Carter v. State, No. M2019-01014-
CCA-R3-HC, 2020 WL 5558144 (Tenn. Crim. App. Sept. 17, 2020), and the Tennessee Supreme
Court denied permission to appeal. (Doc. No. 21-19).
II. CLAIMS
That brings the Court to the operative pleading in this case—Petitioner’s Amended Petition
for federal habeas corpus relief. Although Petitioner divides the Amended Petition into six distinct
grounds for relief, his precise claims are not easy to pin down. That is because some of the headings
for these grounds are not readily understandable, some headings do not readily match up with the
supporting facts, and some supporting facts contain allegations that could be liberally construed as
encompassing separate, additional grounds for relief.
Because Petitioner is representing himself, the Court must liberally construe the Amended
Petition. And a liberal construction of a pro se habeas petition may require “active interpretation .
. . to construe [the] petition to encompass any allegation stating federal relief.” See MacLloyd v.
United States, 684 F. App’x 555, 558 (6th Cir. 2017) (quoting Franklin v. Rose, 765 F.2d 82, 85
(6th Cir. 1985)). So the Court will both take Petitioner at his word by considering the heading of

each ground for relief as an independent claim, and give Petitioner the benefit of the doubt by
actively interpreting each ground’s supporting facts to assert whatever additional claims they may
encompass.4 As expressed in the following list of claims, the heading for each ground for relief
becomes a numbered claim (Ground One becomes Claim 1, Ground Two/Claim 2, and so on), and
any additional claim encompassed within a ground’s supporting facts becomes a lettered subclaim
(the first additional claim within Ground One’s supporting facts becomes Claim 1.A, the second
Claim 1.B, and so on). With this approach in mind, the Court understands Petitioner to assert the
following claims:
1. The trial court lacked subject matter jurisdiction to preside over Petitioner’s case. (Doc.
No. 37 at 5; Doc. No. 37-1 at 2, 7–8, 10).

1.A. The seizure and search of Petitioner’s vehicle was invalid. (Doc. No. 37 at 5; Doc. No.
37-1 at 3–8, 10).

1.B. There is insufficient evidence to support Petitioner’s convictions. (Doc. No. 37-1 at 9).

2. The trial court erred by permitting Petitioner to represent himself on October 26, 2012,
without ensuring that he knowingly and intelligently waived his right to counsel. (Doc.
No. 37 at 7; Doc. No. 37-2).

3. The trial court erred by failing to rule on the pro se pretrial motions Petitioner filed on
October 30, 2012. (Doc. No. 37 at 8–9; Doc. No. 37-3 at 2–3, 7–8, 12).

3.A. The post-conviction court erred by deeming Claim 3 waived. (Doc. No. 37 at 8; Doc. No.
37-3 at 7–8).

4 This is a departure from the approach in Respondent’s Answer, which frames the “Issues
Presented” in a manner that does not acknowledge some of the claims asserted in the Amended Petition,
construed either liberally or restrictively. (See Doc. No. 38 at 16).
3.B. Appellate counsel was ineffective for failing to raise Claim 3 on direct appeal. (Doc. No.
37-3 at 3–7).

3.C. The Tennessee Supreme Court erred on June 20, 2017, by denying Petitioner’s pro se
“motion to render decision,” which sought an order compelling the trial court to rule on
Petitioner’s pro se motions. (Doc. No. 37-3 at 9–11).

4. The trial court erred by denying the motions to suppress filed by Attorney Walwyn and
Attorney Byrd. (Doc. No. 37 at 10; Doc. No. 37-4 at 8–13).

4.A. The post-conviction court erred by not allowing Petitioner to amend his post-conviction
petition to include claims that Attorneys Walwyn and Byrd ineffectively litigated the
motions to suppress. (Doc. No. 37 at 10; Doc. No. 37-4 at 2–4, 6–7).

4.B. Attorneys Walwyn and Byrd ineffectively litigated the motions to suppress. (Doc. No. 37-
4 at 2–6).

5. The trial court erred by declining to bifurcate his felon in possession of a weapon charge.
(Doc. No. 37 at 12).5

5.A. Appellate counsel was ineffective for failing to argue on direct appeal that the evidence
was insufficient to support Petitioner’s conviction for being a felon in possession of a
handgun. (Doc. No. 37 at 12; Doc. No. 37-5 at 2–5).

6. The trial court erred by ruling that Petitioner had forfeited his right to counsel on April 4,
2013, and forcing him to represent himself at trial four days later. (Doc. No. 37 at 13; Doc.
No. 37-6).

III. LEGAL STANDARD
Federal habeas relief for state prisoners is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). AEDPA sets a very high bar for granting federal relief on
claims “adjudicated on the merits” in state court. Harrington v. Richter, 562 U.S. 86, 97 (2011).
Under AEDPA, such a claim cannot be the basis for federal relief unless the state court’s decision
was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law,

5 The Court interprets Claim 5 in this manner because Petitioner’s wording for the heading of Ground
Five is identical to the wording used by appellate counsel for the seventh issue presented for review in
Petitioner’s direct appeal brief. (Compare Doc. No. 37 at 12, with Doc. No. 20-5 at 10, 67). And this Court’s
phrasing of Claim 5 tracks the TCCA’s phrasing for this issue. See Carter, 2016 WL 7799281, at *1, 27.
as determined by the Supreme Court of the United States”; or (2) “based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d).
Under Section 2254(d)(1), a state court’s decision is “contrary to” clearly established
federal law “‘if the state court applies a rule that contradicts the governing law set forth in

[Supreme Court] cases’ or ‘if the state court confronts a set of facts that are materially
indistinguishable from a decision [of the Supreme Court] and nevertheless arrives at a [different
result].’” Hill v. Curtin, 792 F.3d 670, 676 (6th Cir. 2015) (en banc) (quoting Lockyer v. Andrade,
538 U.S. 63, 73 (2003)). “Under the ‘unreasonable application’ clause of [Section] 2254(d)(1),
habeas relief is available if ‘the state court identifies the correct governing legal principle from
[the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the
prisoner’s case.’” Id. (quoting Harris v. Haeberlin, 526 F.3d 903, 909 (6th Cir. 2008)). A state
court’s application is not unreasonable under this standard simply because a federal court finds it
“incorrect or erroneous”; instead, the federal court must find that the state court’s application was

“objectively unreasonable.” Id. (quoting Wiggins v. Smith, 539 U.S. 510, 520–21 (2003)).
To grant relief under Section 2254(d)(2), a federal court must find that “the state court’s
factual determination was ‘objectively unreasonable’ in light of the evidence presented in the state
court proceedings.” Young v. Hofbauer, 52 F. App’x 234, 236 (6th Cir. 2002). State court factual
determinations are unreasonable only “if it is shown that the state court’s presumptively correct
factual findings are rebutted by ‘clear and convincing evidence’ and do not have support in the
record.” Pouncy v. Palmer, 846 F.3d 144, 158 (6th Cir. 2017) (quoting Matthews v. Ishee, 486
F.3d 883, 889 (6th Cir. 2007)). “[I]t is not enough for the petitioner to show some unreasonable
determination of fact; rather, the petitioner must show that the resulting state court decision was
‘based on’ that unreasonable determination.” Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011)
(citing Byrd v. Workman, 645 F.3d 1159, 1172 (10th Cir. 2011)).
But review of claims rejected on the merits in state court is ordinarily only available to
petitioners who “exhausted the remedies available in the courts of the State.” 28 U.S.C. §
2254(b)(1)(A). In Tennessee, a petitioner can exhaust all available state remedies for a claim by

presenting it to the TCCA. Adams v. Holland, 330 F.3d 398, 402 (6th Cir. 2003) (citing Tenn. Sup.
Ct. R. 39). “To be properly exhausted, [a] claim must have been ‘fairly presented’ to the state
courts,” meaning that the petitioner presented “the same claim under the same theory . . . to the
state courts.” Wagner v. Smith, 581 F.3d 410, 414, 417 (6th Cir. 2009) (citations omitted).
The procedural default doctrine is an “important corollary” to the exhaustion requirement.
Davila v. Davis, 137 S. Ct. 2058, 2064 (2017) (citations omitted). It prevents a federal habeas court
from reviewing “federal claims that . . . the state court denied based on an adequate and
independent state procedural rule.” Id. A claim also may be “technically exhausted, yet
procedurally defaulted” where “a petitioner fails to present a claim in state court, but that remedy

is no longer available to him.” Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015) (citing Jones
v. Bagley, 696 F.3d 475, 483–84 (6th Cir. 2012)).
To obtain review of a procedurally defaulted claim, a petitioner must “establish ‘cause’
and ‘prejudice,’ or a ‘manifest miscarriage of justice.’” Middlebrooks v. Carpenter, 843 F.3d 1127,
1134 (6th Cir. 2016) (citing Sutton v. Carpenter, 745 F.3d 787, 790–91 (6th Cir. 2014)). “Cause”
has been described as “some objective factor external to the defense [that] impeded counsel’s
efforts to comply with the State’s procedural rule.” Davila, 137 S. Ct. at 2065 (citations omitted).
“Prejudice” means that the errors must have resulted in “actual and substantial disadvantage,
infecting [the petitioner’s] entire trial with error of constitutional dimensions.” Garcia-Dorantes
v. Warren, 801 F.3d 584, 598 (6th Cir. 2015) (internal citations and quotation marks omitted). And
the manifest-miscarriage-of-justice exception applies “where a constitutional violation has
‘probably resulted’ in the conviction of one who is ‘actually innocent’ of the substantive offense.”
Dretke v. Haley, 541 U.S. 386, 392 (2004) (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)).
IV. ANALYSIS
The Court will address Petitioner’s claims in three groups: claims that are not viable

grounds for relief in a federal habeas proceeding under Section 2254, claims that are without merit,
and claims that the Court believes are not subject to a merits review based on the doctrine of
procedural default. The first two groups of claims will be denied, and Petitioner will have an
opportunity to respond to the Court’s analysis with regard to the third group of claims.
A. Non-Cognizable
A federal court can grant a state prisoner’s request for habeas relief “only on the ground
that he is in custody in violation of the Constitution or law or treaties of the United States.” 28
U.S.C. § 2254(a). A ground for habeas relief that does not assert a violation of federal law,
therefore, is “outside the scope of federal habeas corpus review.” See Cress v. Palmer, 484 F.3d

844, 853 (6th Cir. 2007) (citations omitted).
1. Claim 1—Trial Court’s Subject Matter Jurisdiction
Petitioner asserts that the Davidson County Criminal Court lacked subject matter
jurisdiction to preside over his criminal case. (Doc. No. 37 at 5; Doc. No. 37-1 at 2, 7–8, 10). But
“[d]etermination of whether a state court is vested with jurisdiction under state law is a function
of the state courts, not the federal judiciary.” Wills v. Egeler, 532 F.2d 1058, 1059 (6th Cir. 1976).
So “a state court’s interpretation of state jurisdictional issues conclusively establishes jurisdiction
for purposes of federal habeas review.” Jones v. Floyd, No. 20-2080, 2021 WL 3411802, at *1
(6th Cir. May 27, 2021) (citing Strunk v. Martin, 27 F. App’x 473, 475 (6th Cir. 2001); Wills, 532
F.2d at 1059 (6th Cir. 1976)); see also Sturgis v. Horton, No. 20-1947, 2021 WL 1327137, at *3
(6th Cir. Jan. 21, 2021).
Petitioner raised the argument underlying Claim 1, in some form, multiple times in state
court before raising it in his federal habeas petition. (See Doc. No. 21-10 at 34 (denial of second
state habeas petition)); Carter, 2019 WL 1110308, at *10 (affirming denial of post-conviction

relief). In state post-conviction proceedings, for example, Petitioner argued that he received
ineffective assistance regarding this issue from Attorney Martin because Martin “fail[ed] to file a
motion for arrest of judgment based upon the lack of subject matter jurisdiction.” Carter, 2019
WL 1110308, at *10. In rejecting that claim, the TCCA clearly explained why the Davidson
County Criminal Court had jurisdiction over Petitioner’s criminal case as a matter of state law:
The petitioner’s confusion arises from the fact that although he originally took the
comic books from the victim’s residence in Rutherford County, the stolen comic
books were seized in Davidson County, and he was subsequently prosecuted in
Davidson County. The jurisdictional question, as framed by the petitioner, is
actually a claim of improper venue. Although our state constitution “provides that
an accused must be tried in the county in which the crime was committed,” the State
need only establish venue, and thereby the jurisdiction of the trial court, by a
preponderance of the evidence. State v. Young, 196 S.W.3d 85, 101-02 (Tenn.
2006) (citations omitted). Moreover, “[v]enue is a question for the jury,” and “the
jury is entitled to draw reasonable inferences from the evidence” when determining
venue. Id. (citations omitted). “Importantly, where different elements of the same
offense are committed in different counties, ‘the offense may be prosecuted in
either county.’” Id. (citing Tenn. R. Crim. P. 18(b)).

Theft is committed by knowingly obtaining or exercising control over property
without the owner’s consent. See T.C.A. § 39-14-103(a). In this case, although the
petitioner obtained the comic books from the victim’s residence, he clearly
exercised control over the comic books when they were inside his car in Davidson
County. Because some elements of the theft offense were committed in Davidson
County, the offense was properly prosecuted in Davidson County. Because the
offense was properly prosecuted in Davidson County, counsel did not perform
deficiently by failing to seek an arrest of judgment on the basis of a lack of
jurisdiction.

Carter, 2019 WL 1110308, at *10.
This state-court ruling on a state jurisdictional matter is binding on this federal habeas
court. See Jones, 2021 WL 3411802, at *1; Sturgis, 2021 WL 1327137, at *3. So Claim 1 is not a
viable ground for relief in this case.
2. Claims 1.A and 4—Validity of the Search
Law enforcement obtained the physical evidence underlying this case (comic books and a

handgun) from a search of Petitioner’s car. In Claim 1.A, Petitioner asserts that the seizure and
search of his car was invalid (Doc. No. 37 at 5; Doc. No. 37-1 at 3–8, 10), and in Claim 4, Petitioner
asserts that the trial court erred by denying the motions to suppress the evidence obtained from
this search filed by Attorneys Walwyn and Byrd. (Doc. No. 37 at 10; Doc. No. 37-4 at 2–4, 6–7).
These claims arise under the Fourth Amendment, and a federal habeas court cannot grant “relief
based on a state court’s failure to apply the exclusionary rule of the Fourth Amendment, unless the
claimant shows that the State did not provide him ‘an opportunity for full and fair litigation of [his]
Fourth Amendment claim.’” Rashad v. Lafler, 675 F.3d 564, 570 (6th Cir. 2012) (quoting Stone v.
Powell, 428 U.S. 465, 494 (1976)). An “‘opportunity for full and fair consideration’ means an

available avenue for the prisoner to present his claim to the state courts, not an inquiry into the
adequacy of the procedure actually used to resolve that particular claim.’” Good v. Berghuis, 729
F.3d 636, 639 (6th Cir. 2013) (quoting Powell, 528 U.S. at 949). This rule boils down to a basic
question: “Did the state courts permit the defendant to raise the claim or not?” Id. at 640.
For Claim 4, the answer to that question is clear—yes, the state courts permitted Petitioner
to litigate the motions to suppress filed by Attorneys Walwyn and Byrd. For each of these motions,
the trial court held hearings (Doc. Nos. 19-6, 19-10) and issued written orders denying the motions.
(Doc. No. 19-1 at 44–54, Doc. No. 19-2 at 13–18). Petitioner raised the denial of these motions on
direct appeal, and the TCCA affirmed the trial court’s rulings. See Carter, 2016 WL 7799281, at
*17–18. Regardless of Petitioner’s disagreement with this outcome, it is clear that the state courts
provided an adequate avenue for litigation of the motions to suppress filed by Attorneys Walwyn
and Byrd. That removes Claim 4 from the category of reviewable claims for a federal habeas court.
The same result ultimately applies to Claim 1.A, but reaching that conclusion requires a
deeper dive into the record. Claim 1.A is Petitioner’s attempt to present his own suppression
arguments outside the context of the motions filed by Attorneys Walwyn and Byrd. And in his

Reply, Petitioner essentially argues that he did not have an opportunity for full and fair litigation
of his own suppression arguments because the trial court never ruled on the pro se motion to
suppress Petitioner filed on October 30, 2012—during a period of time in which Petitioner was
representing himself with Attorney Byrd as elbow counsel. (Doc. No. 43 at 3). But Petitioner did
eventually have an opportunity to present the suppression arguments raised in this pro se motion,
albeit in the context of a claim of ineffective assistance of appellate counsel. On post-conviction
appeal, Petitioner asserted that appellate counsel “performed deficiently by failing to challenge on
appeal the trial court’s failure to issue a ruling on the petitioner’s pro se pretrial motions.” Carter,
2019 WL 1110308, at *11. In rejecting this claim, the TCCA noted appellate counsel’s evidentiary

hearing testimony that he omitted this claim because he believed that “the filings at issue were
simply a rehashing of ‘what [the petitioner’s previous counsel] had done regarding the suppression
issues and had already had two hearings in front of the Court about it’ and that he had adequately
addressed those issues in his appellate brief.” Id. The TCCA then “examine[d] the merit of the
omitted issue” and determined that “petitioner presented no evidence to suggest” that “the court’s
failure to rule on any of the pro se motions presented a viable issue on appeal.” Id.; see also id. at
*8 (“[N]othing suggests that the validity of the search was anything other than fully and fairly
litigated.”). As with Claim 4, Petitioner may be dissatisfied with the outcome of this procedure,
but the record nonetheless reflects that the State offered Petitioner an opportunity to raise the
Fourth Amendment arguments underlying Claim 1.A. See Brown v. Nagy, No. 19-1847, 2019 WL
7761722, at *6 (6th Cir. Dec. 16, 2019) (denying certificate of appealability where district court
ruled that habeas petitioner’s Fourth Amendment claim was rendered non-cognizable by the
petitioner raising the claim “in the context of an ineffective-assistance-of-[counsel] claim, which
the state appellate court rejected on the grounds that the underlying Fourth Amendment claim was
meritless”). Claim 1.A, therefore, is not subject to review through a federal habeas petition.

3. Claims 3.A and 4.A—Post-Conviction Court Errors
Petitioner asserts that the post-conviction court erred by deeming a claim waived (Claim
3.A) and denying his request to amend his post-conviction petition (Claim 4.A). (Doc. No. 37 at
8, 10; Doc. No. 37-3 at 7–8; Doc. No. 37-4 at 2–4, 6–7). But “[n]o federal constitutional provision
compels states to provide access to post-conviction review after the conclusion of direct appeal,
and therefore alleged infirmities in any such collateral review do not amount to a violation of any
federal right.” Byars v. Gidley, No. 16-2485, 2017 WL 4956919, at *2 (6th Cir. July 3, 2017)
(citing Kirby v. Dutton, 794 F.2d 245, 247–48 (6th Cir. 1986); Leonard v. Warden, Ohio State
Penitentiary, 846 F.3d 832, 854–55 (6th Cir. 2017)). Accordingly, Claims 3.A and 4.A are not

cognizable grounds for federal habeas relief.
4. Claim 3.C—Tennessee Supreme Court Error
On June 20, 2017, the Tennessee Supreme Court denied Petitioner’s pro se “motion to
render decision” seeking to compel a ruling on Petitioner’s pro se motions. The Supreme Court
explained that “the case in which [Petitioner] ha[d] filed his pro se motions is concluded in the
trial court and on appeal.” (Doc. No. 20-15 at 132). Petitioner challenges that ruling in Claim 3.C.
(Doc. No. 37-3 at 9–11). But that ruling is not reviewable in a federal habeas case because there is
no federal right to the type of extraordinary relief Petitioner sought in the state supreme court
through his “motion to render decision.” See Frazier v. Slatery, No. 19-6483, 2020 WL 9423916,
at *2 (6th Cir. May 22, 2020) (quoting Cress, 484 F.3d at 853 (denying certificate of appealability
on habeas petitioner’s “claims relating to the adjudication of his motion to correct an illegal
sentence” as “‘outside the scope of federal habeas corpus review’”)). So Claim 3.C will be denied.
5. Claim 5—Trial Court’s Failure to Bifurcate
The court bifurcated Petitioner’s trial, such that the jury decided Petitioner’s theft charge
before considering his gun charge. In Claim 5, Petitioner asserts that the court erred by failing to

bifurcate further when it did not require the jury to determine whether he was in possession of a
weapon before learning he was a convicted felon. (Doc. No. 37 at 12). In other words, Petitioner
argues the court improperly joined trial on the elements of his gun charge. But the United States
Supreme Court “has not held improper joinder to be unconstitutional.” Wheeldon v. Campbell, No.
16-2054, 2017 WL 3165083, at *3 (6th Cir. Mar. 6, 2017) (citing United States v. Lane, 474 U.S.
438, 448 & n.8 (1986)). “Although the Supreme Court has suggested in a footnote that
inappropriate joinder could be so prejudicial as to violate a defendant’s Fifth Amendment right to
a fair trial,” id., the Sixth Circuit has called this suggestion “dicta” that “does not constitute clearly
established federal law” for purposes of ruling on a federal habeas petition. Tighe v. Berghuis, No.

16-2435, 2017 WL 4899833, at *2 (6th Cir. Apr. 21, 2017) (citing Mayfield v. Morrow, 528 F.
App’x 538, 541–42 (6th Cir. 2013)). So federal habeas relief is not available for Claim 5.6
B. Without Merit
As explained above, a federal habeas court usually only considers the merits of claims that
were exhausted in state court. See 28 U.S.C. § 2254(b)(1)(A). Before raising a claim in a federal
habeas petition, therefore, a petitioner typically must present “the same claim” to the state courts.
See Wagner, 581 F.3d at 414. If a petitioner properly exhausts a cognizable claim in this way, then

6 Even if the Court could consider Claim 5, relief would be “available only to a defendant who can
demonstrate actual rather than potential prejudice.” Tighe, 2017 WL 4899833, at *2 (citing Davis v. Coyle,
475 F.3d 761, 777 (6th Cir. 2007)). And Petitioner has not attempted to show that he experienced actual
prejudice from the court failing to hold an element-by-element trial on his gun charge.
the federal habeas court reviews the merits through the lens of “AEDPA deference”—a standard
of review that considers whether the “state court [] applied clearly established federal law to
reasonably determined facts,” and if so, prevents a federal habeas court from “disturb[ing] the state
court’s decision unless its error lies ‘beyond any possibility for fairminded disagreement.’” Shinn
v. Kayer, 141 S. Ct. 517, 520 (2020) (quoting Harrington, 562 U.S. at 103).

But even for claims that were not properly exhausted in state court, a federal habeas court
may address the merits if that is a “straightforward ground for decision.” Wade v. Timmerman-
Cooper, 785 F.3d 1059, 1077 (6th Cir. 2015) (citation omitted); see also 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.”). So the Court
will also conduct a de novo merits review of any remaining claims that Petitioner did not properly
exhaust, provided those claims are “easily resolvable against” Petitioner. See Lambrix v.
Singletary, 520 U.S. 518, 525 (1997) (“Judicial economy might counsel giving [a constitutional]
question priority, for example, if it were easily resolvable against the habeas petitioner, whereas

the procedural-bar issue involved complicated issues of state law.”)
1. Claim 1.B—Insufficient Evidence
A jury convicted Petitioner of two offenses: (1) theft of property valued at least $60,000
and (2) being a felon in possession of a handgun. The Court construes Claim 1.B to assert that
there was insufficient evidence to support both convictions. (Doc. No. 37-1 at 9). On direct appeal,
Petitioner exhausted a claim of insufficient evidence regarding the theft conviction, so that ruling
will be reviewed with AEDPA deference. Petitioner did not, however, exhaust such a claim with
respect to the gun conviction, so that aspect of Claim 1.B will be reviewed de novo.7

7 Petitioner exhausted a related claim of appellate ineffectiveness (see Claim 5.A, discussed below),
but that is not an insufficient-evidence claim, so Petitioner did not properly exhaust this part of Claim 1.B.
The federal law governing a claim of insufficient evidence comes from Jackson v. Virginia,
443 U.S. 307 (1979). Under Jackson, a court “must determine whether, viewing the trial testimony
and exhibits in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Brown v. Konteh, 567 F.3d
191, 205 (6th Cir. 2009) (citing Jackson, 443 U.S. at 319). The court, in doing so, does “not

reweigh the evidence, re-evaluate the credibility of witnesses, or substitute [its] judgment for that
of the jury.” Id. (citing United States v. Hilliard, 11 F.3d 618, 620 (6th Cir. 1993)).
A. Theft Conviction
For the theft conviction, the TCCA applied this clearly established federal law to reject
Petitioner’s sufficiency challenge on the merits. See Carter, 2016 WL 7799281, at *21–22. Two
levels of deference thus apply to this ruling: “First, deference should be given to the trier-of-fact’s
verdict, as contemplated by Jackson; second, deference should be given to the [state court’s]
consideration of the trier-of-fact’s verdict, as dictated by AEDPA.” Tucker v. Palmer, 541 F.3d
652, 656 (6th Cir. 2008) (citing Parker v. Renico, 506 F.3d 444, 448 (6th Cir. 2007)).

The TCCA ruled as follows:
“A person commits theft of property if, with intent to deprive the owner of property,
the person knowingly obtains or exercises control over the property without the
owner’s effective consent.” T.C.A. § 39-14-103(a) (2014). Theft of property valued
over $60,000 but less than $250,000 is a Class B felony. T.C.A. § 39-14-105(5)
(2014). The value of the property taken is an element of the offense of theft. Id.;
see also State v. Mike Wayne Tate, No. 03C01-9204-CR-127, 1993 WL 55631, at
*2 (Tenn. Crim. App., at Knoxville, March 4, 1993), perm. app. denied (Tenn. June
1, 1993). Tennessee Code Annotated section 39-11-106(a)(36)(A) defines “value”
as “(i) The fair market value of the property or service at the time and place of the
offense; or (ii) If the fair market value of the property cannot be ascertained, the
cost of replacing the property within a reasonable time after the offense.” The fair
market value of property is a question of fact for the jury. See State v. Hamm, 611
S.W.2d 826, 828–29 (Tenn. 1981).

The record shows that the jury was properly instructed on how to assess the value
of the stolen property—that the value of the stolen comic books was the fair market
value at the time of the offense. Dr. Clark testified that he determined the fair
market value of the comic books by using his experience and knowledge as a comic
book collector, based particularly on his monthly involvement in the online comic
book market. He also utilized online pricing guides and research. Additionally, Dr.
Clark repurchased the stolen comic books from some of the dealers and collectors,
and he used the purchase price in those transactions to help determine their value.
The Great Escape also provided him a valuation for the comic books that were in
its possession. Using these tools and his knowledge, Dr. Clark determined that the
value of the stolen comic books was $83,130. There was an opportunity for cross-
examination of Dr. Clark regarding his determination of the value. The jury heard
Dr. Clark’s testimony concerning his methodology for ascertaining value and
determined that the fair market value was more than $60,000. We conclude that the
evidence presented to the jury was sufficient to support determination, beyond a
reasonable doubt, that the value of the property exceeded $60,000. The Defendant
is not entitled to relief on this issue.

Carter, 2016 WL 7799281, at *22.
This ruling was reasonable. The TCCA noted the essential elements of the theft offense
and summarized the supporting evidence presented at trial. It was the job of the jury, not a
subsequent reviewing court, to weigh the evidence. “The jury in this case was convinced, and the
only question under Jackson is whether that finding was so insupportable as to fall below the
threshold of bare rationality.” Coleman v. Johnson, 566 U.S. 650, 656 (2012). The TCCA
reasonably answered that question no, so this aspect of Claim 1.B will be denied.
B. Gun Conviction
For the gun conviction, the State had to present evidence from which a rational trier of fact
could find that Petitioner (1) possessed a handgun (2) as a convicted felon. See Tenn. Code Ann.
§ 39-17-1307(c)(1). The “felon” element was easily satisfied by evidence of Petitioner’s prior
felony conviction. See Carter, 2016 WL 7799281, at *13.
The “possession” element was also satisfied, based on a theory of constructive possession.
“In criminal cases, a possession element may generally be established by showing actual or
constructive possession.” State v. Fayne, 451 S.W.3d 362, 370 (Tenn. 2014) (citing State v.
Robinson, 400 S.W.3d 529, 534 (Tenn. 2013)). “While actual possession refers to physical control
over an item, constructive possession requires only that a defendant have the power and intention
. . . to exercise dominion and control over the item allegedly possessed.” Id. (internal citations and
quotation marks omitted). “In essence, constructive possession is the ability to reduce an object to
actual possession.” State v. Brown, 915 S.W.2d 3, 7 (Tenn. Crim. App. 1995) (citation omitted).
Here, Detective Eubank testified that he found a gun in a black bag under the front hood

of a car belonging to Petitioner. (Doc. No. 19-12 at 8–10 (testimony); Doc. No. 19-15 at 76
(picture)). To establish Petitioner’s control over the car, Eubank testified that he found documents
in the car with Petitioner’s name on them, including a Tennessee Department of Revenue
registration form, a cell phone bill, and some paperwork from a towing company. (Doc. No. 19-
12 at 8–11). The jury found that evidence sufficient to establish Petitioner’s constructive
possession of the gun, and viewing the evidence in a light most favorable to the State, that finding
was not “so insupportable as to fall below the threshold of bare rationality.” See Coleman, 566
U.S. at 656; State v. Bernard, No. E2005-00852-CCA-R3CD, 2006 WL 1063687, at *4, 6 (Tenn.
Crim. App. Apr. 21, 2006) (finding sufficient evidence to support constructive possession of a gun

found in the trunk of a defendant’s vehicle). So even applying a de novo review, Petitioner’s
challenge to the sufficiency of the evidence supporting his gun conviction is without merit.
To sum up, the TCCA reasonably rejected Petitioner’s sufficiently challenge to his theft
conviction, and the jury rationally found sufficient evidence for Petitioner’s gun conviction. Claim
1.B, accordingly, will be denied.
2. Claims 3.B and 5.A—Ineffective Assistance of Appellate Counsel
Petitioner asserts that appellate counsel was ineffective for failing to raise two claims on
direct appeal, namely: the trial court’s failure to issue a ruling on Petitioner’s pro se pretrial
motions (Claim 3.B), and the sufficiency of the evidence supporting Petitioner’s conviction for
being a felon in possession of a firearm (Claim 5.A). (Doc. No. 37 at 12; Doc. No. 37-3 at 3–7;
Doc. No. 37-5 at 2–5). Petitioner raised both of these claims on post-conviction appeal, and the
TCCA applied the governing federal law of Strickland v. Washington to reject them on the merits.
Carter, 2019 WL 1110308, at *11–12 (citing Jones v. Barnes, 463 U.S. 745, 751–52 (1983);
Strickland v. Washington, 466 U.S. 668, 689 (1984)); Webb v. Mitchell, 586 F.3d 383, 398 (6th
Cir. 2009) (citing Smith v. Robbins, 528 U.S. 259, 285 (2000) (“Ineffective assistance of appellate

counsel claims are governed by the same Strickland standard as ineffective assistance of trial
counsel.”)). So AEDPA deference applies to those rulings.
“Ineffective assistance under Strickland is deficient performance by counsel resulting in
prejudice, with performance being measured against an objective standard of reasonableness under
prevailing professional norms.” Moore v. Mitchell, 708 F.3d 760, 776 (6th Cir. 2013) (quoting
Rompilla v. Beard, 545 U.S. 374, 380 (2005)). Importantly, “appellate counsel who files a merits
brief need not (and should not) raise every nonfrivolous claim, but rather may select from among
them in order to maximize the likelihood of success on appeal.” Robbins, 528 U.S. at 288 (citing
Barnes, 463 U.S. 745). To establish deficiency for appellate counsel’s failure to raise a claim, a

petitioner “must demonstrate that the issue not presented ‘was clearly stronger than issues that
counsel did present.’” Caver v. Straub, 349 F.3d 340, 348 (6th Cir. 2003) (quoting Robbins, 528
U.S. 22 at 289). And to establish prejudice, a petitioner “must demonstrate ‘a reasonable
probability that, but for his counsel’s unreasonable failure to’ raise this issue on appeal, ‘he would
have prevailed.’” Webb, 586 F.3d at 399 (quoting Robbins, 528 U.S. at 285).
A. Pro Se Pretrial Motions
The TCCA resolved Claim 3.B on deficiency grounds. It gave two reasons why appellate
counsel was not deficient for failing to argue that the trial court erred by not ruling on Petitioner’s
pro se pretrial motions: first, because Petitioner did not clarify the pro se pretrial motions to which
he was referring; and second, because Petitioner’s presented no evidence to counter appellate
counsel’s evidentiary hearing testimony that he “did not believe that the court’s failure to rule on
any of the pro se motions presented a viable issue on appeal.” Carter, 2019 WL 1110308, at *12.
Although the first part of this ruling lacks support in this record, the second part is
reasonable. That is, in Petitioner’s post-conviction appeal brief, he did name certain pro se pretrial
motions to which he was referring—his motion to dismiss the indictment and motion for a bill of

particulars. (See Doc. No. 21-2 at 25–26). But his post-conviction appeal brief did not establish
that the trial court’s failure to rule on these motions presented meritorious issues on appeal, and he
certainly did not establish that the failure to rule on these motions presented issues that were
“clearly stronger than issues that counsel did present.” Caver, 349 F.3d at 348. Appellate counsel
raised eight distinct issues on direct appeal (see Doc. No. 20-5), including much more developed
issues like the trial court’s forfeiture-of-counsel and suppression rulings. See Carter, 2016 WL
7799281. Appellate counsel, therefore, “did all that [is] required in framing the appeal: he sifted
through the universe of potential claims and winnowed the list to those he deemed most likely to
succeed.” Powell v. Berghuis, 560 F. App’x 442, 452 (6th Cir. 2013) (citing Robbins, 528 U.S. at

288). The TCCA’s deference to appellate counsel’s judgment on this matter was reasonable.
B. Sufficiency of the Evidence Supporting the Gun Conviction
The TCCA resolved Claim 5.A on deficiency grounds as well, reasoning that “the evidence
was more than sufficient to support” Petitioner’s gun conviction:
During the search of the vehicle registered in the petitioner’s name, authorities
discovered the victim’s stolen comic books, “a vehicle registration and cell phone
bill, both listing the [petitioner’s] name,” and “a gun in the engine compartment of
the vehicle,” which “gun was shown to the jury and entered into the record as
evidence.” Elaine Ragan, an employee of the criminal court clerk’s office
“identified a certified copy of the [petitioner’s] prior conviction for a felony in case
number 2004-B-1762, Theft of Property, a Class C Felony.” Under these
circumstances, Mr. Russ did not perform deficiently.

Carter, 2019 WL 1110308, at *11 (internal citations omitted).
This ruling was reasonable. As discussed above, this Court concluded that Petitioner’s
sufficiency challenge to his gun conviction was without merit under a de novo application of the
standard set out in Jackson v. Virginia. Appellate counsel cannot be deficient for failing to raise a
claim that lacks merit. See Webb, 586 F.3d at 399 (“An obviously meritless claim is never ‘clearly
stronger’ than the claims raised on direct appeal.”). So the Court agrees with the TCCA that

appellate counsel was not deficient for failing to raise this claim.
3. Claim 4.B—Ineffective Litigation of the Motions to Suppress
Attorney Walwyn and Attorney Byrd each filed a motion to suppress. In Claim 4.B,
Petitioner asserts that they ineffectively litigated their respective motion. (Doc. No. 37-4 at 2–6).
Petitioner raised this claim on post-conviction appeal, and the TCCA applied the applicable
Strickland standard to reject it on the merits. See Carter, 2019 WL 1110308, at *9 (considering
claim that Petitioner received ineffective assistance prior to trial based on counsel’s handling of
the motion to suppress). So AEDPA deference applies.
A claim of ineffective assistance of counsel, to restate, requires a petitioner to make a

showing of deficient performance resulting in prejudice. Knowles v. Mirzayance, 556 U.S. 111,
124 (2009) (citing Strickland, 466 U.S. at 687). Performance is deficient where it falls “below an
objective standard of reasonableness.” Strickland, 466 U.S. at 687–88. “[A] court must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 689 (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Prejudice requires a
showing “that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694. And where a federal habeas court
is reviewing a claim of ineffective assistance with AEDPA deference, “[t]he pivotal question” is
not “whether defense counsel’s performance fell below Strickland’s standard,” but “whether the
state court’s application of the Strickland standard was unreasonable.” Harrington, 562 U.S. at
101. This amounts to a “‘doubly deferential’ standard of review that gives both the state court and
the defense attorney the benefit of the doubt.” Burt v. Titlow, 571 U.S. 12, 15 (2013) (quoting
Cullen v. Pinholster, 563 U.S. 170, 190 (2011)).
According to the TCCA, Petitioner failed to show ineffective assistance by Attorney
Walwyn and Attorney Byrd because the “underlying claims” related to the motions to suppress

were “fully and fairly litigated,” and “[n]o evidence suggests that counsel could have done
anything more.” Carter, 2019 WL 1110308, at *9. Petitioner, on the other hand, argues that both
attorneys could have done more. Petitioner says that Attorney Walwyn could have contested
probable cause, rather than waive it. (Doc. No. 37-4 at 2–5). And he says that Attorney Byrd could
have argued for suppression based on the fact that Rutherford County law enforcement seized his
vehicle in Davidson County without a warrant. (Id. at 5–6).
As to Attorney Walwyn’s handling of the probable cause issue, Detective Eubank testified
at an evidentiary hearing that he went to Petitioner’s residence—part of a complex with gates at
the vehicle entrances—and saw Petitioner’s car parked “in a group of parking spots next to the

dumpster that served the condominium building.” Carter, 2016 WL 7799281, at *5. Eubank
testified that he decided to obtain a search warrant after looking “through the back window” of
Petitioner’s car and seeing “‘in plain view’ on the backseat . . . comic books matching the victim’s
description of the stolen comic books, in that they had a black ‘S’ written in sharpie pen on the
comic books.” Id. at *6. In his motion to suppress, Attorney Walwyn argued for suppression
because Eubank’s “presence on [Petitioner’s] property where the vehicle was parked was
unlawful.” Id. at *5. But Attorney Walwyn did not argue that Eubank’s observation of the items
in Petitioner’s backseat did not amount to probable cause. (See Doc. No. 19-6 at 39 (Walwyn’s
evidentiary hearing argument that “I’m not arguing what [Eubank] saw or what he didn’t see”);
see also Doc. No. 19-10 at 7–8 (Byrd’s hearing argument that “Walwyn did not argue the probable
cause status of this case. I don’t believe that should have been waived, but I am -- by the Court’s
order I’m restricted from arguing things that were previously heard.”)).
Despite arguing that Attorney Walwyn should not have waived the probable cause issue,
Petitioner offers no reason to think that there was some untapped strategy for prevailing on it. And
regardless of any waiver, the TCCA considered the probable cause issue when it made an

affirmative finding on direct appeal that “Detective Eubank’s observation of the comic books in
plain view gave him probable cause to believe that [Petitioner’s] vehicle contained stolen
property.” Carter, 2016 WL 7799281, at *19. So the TCCA reasonably rejected Petitioner’s claim
that Attorney Walwyn mishandled his motion to suppress.
As for Attorney Byrd, the record reflects that he did make the very argument that Petitioner
claims he should have made. (See Doc. No. 19-2 at 5–8 (Byrd’s motion arguing that suppression
was required because Rutherford County law enforcement seized Petitioner’s vehicle in Davidson
County without a warrant)). Petitioner does not explain what else Attorney Byrd could have done
to convince the trial court to accept it. And the TCCA affirmed the trial court’s rejection of this

argument on direct appeal. See Carter, 2016 WL 7799281, at *19 (citing State v. Carter, 160
S.W.3d 526, 532 (Tenn. 2005) (“As to the Defendant’s argument that, pursuant to Tennessee Code
Annotated section 6-54-301, Detective Eubank was operating outside the parameters of his
jurisdiction and his authority as a police officer, we agree with the trial court’s conclusion that this
statutory violation is not a violation of the Defendant’s constitutional rights, rendering the
exclusionary rule inapplicable.”)). So the TCCA also reasonably rejected Petitioner’s claim that
Attorney Byrd mishandled his motion to suppress. Claim 4.B, accordingly, will be denied.
4. Claim 6—Forfeiture Ruling
On April 4, 2013, the trial court ruled that Petitioner had forfeited his right to counsel. Four
days later, trial commenced with Petitioner representing himself. In Claim 6, Petitioner asserts that
the trial court’s forfeiture ruling was in error. (Doc. No. 37 at 13; Doc. No. 37-6). Petitioner raised
this argument on direct appeal, and the TCCA rejected it on the merits. Carter, 2016 WL 7799281,
at *14–17. AEDPA deference therefore applies.
The Court would ordinarily begin its review of a claim subject to AEDPA deference by
identifying “the ‘clearly established Federal law, as determined by the Supreme Court of the

United States’ that governs” the state court’s ruling. See Marshall v. Rodgers, 569 U.S. 58, 61
(2013) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000); Mirzayance, 556 U.S. at 122). But as
Respondent rightly notes (see Doc. No. 38 at 25–26), the Supreme Court has not considered the
underlying question of when, if at all, a recalcitrant criminal defendant can forfeit his right to
counsel. See Carruthers v. Mays, 889 F.3d 273, 289–90 (6th Cir. 2018). So the TCCA had “broad
discretion” to adjudicate Petitioner’s forfeiture claim. See McKinney v. Hoffner, 830 F.3d 363, 371
(6th Cir. 2016) (quoting Woods v. Donald, 575 U.S. 312, 318 (2015) (“The Supreme Court has
repeatedly reminded us that ‘where the precise contours of a right remain unclear, state courts
enjoy broad discretion in their adjudication of a prisoner’s claims.’”)).

Indeed, the lack of clearly established federal law on this subject essentially prevents
Petitioner from prevailing on this claim under 28 U.S.C. § 2254(d)(1). Section 2254(d)(1), to
restate, provides that a habeas claim cannot succeed unless the state court’s decision was “contrary
to, or involved an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States.” And without a Supreme Court case addressing this
subject, Petitioner cannot establish that the state court’s ruling contradicted or unreasonably
applied clearly established federal law. See Carruthers, 889 F.3d at 290 (denying relief under
Section 2254(d)(1) on a habeas claim challenging a state court ruling that defendant “forfeited his
right to counsel through his pre-trial ‘misbehavior’”); see also id. at 291 (citing Swiger v. Brown,
86 F. App’x 877, 882 (6th Cir. 2004) (“[N]o clearly established Supreme Court precedent dictates
that formal warnings [about the dangers and disadvantages of self-representation] are required,
even in the context of a defendant’s waiving his right to counsel.”)).
Petitioner also cannot prevail under Section 2254(d)(2). This section bars habeas relief
unless the state court’s decision was “based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” The TCCA’s forfeiture ruling included a

few statements that, according to Petitioner, are unsupported by the record. (See Doc. No. 37-6 at
2–3). But these alleged misstatements of fact do not entitle Petitioner to relief.
Petitioner had four appointed attorneys before trial. The TCCA, in affirming the trial
court’s forfeiture ruling, made some broad statements about Petitioner’s treatment of all four
attorneys, including that Petitioner “refused to cooperate with any of them” and “was difficult or
hostile towards each of [them].” Carter, 2016 WL 7799281, at *16. Petitioner says this statement
is unsupported as it pertains to his first two attorneys, Attorney Grice and Attorney Pritchard. (Doc.
No. 37-6 at 2–3). But the TCCA recognized that the “record contains little documentation
regarding the bases for the removal of Ms. Grice and Mr. Prichard.” Carter, 2016 WL 7799281,

at *1. So the TCCA relied on the explanation given by the trial court for these removals in the trial
court’s “subsequent orders,” which was that Petitioner “had ‘difficulties’ with both of these
attorneys.” See id. With no other evidence on this subject in the record, it was not unreasonable
for the TCCA to rely on the trial court’s description of prior proceedings over which it presided.
Even assuming, without deciding, that the TCCA “unreasonably interpreted the record
before it” when broadly describing Petitioner’s treatment of all four attorneys, it is also clear that
“any erroneous statement of the facts surrounding” Petitioner’s treatment of Attorney Grice and
Attorney Pritchard “did not affect its ultimate decision.” See Carruthers, 889 F.3d at 291–92
(finding that “misstatement” by the state court did not provide a ground for relief under Section
2254(d)(2) on claim challenging a forfeiture ruling). Attorney Grice and Attorney Pritchard
represented Petitioner for less than three months at the very beginning of his state criminal case.
And just as they played a small role in Petitioner’s case, they were not an essential feature of the
TCCA’s forfeiture analysis. The full context of this analysis reflects that it was Petitioner’s
mistreatment of Attorney Walwyn and Attorney Byrd—the attorneys who represented Petitioner
for the bulk of his case8—that animated the TCCA’s ruling:

The Defendant was represented by four different attorneys and refused to cooperate
with any of them. He repeatedly asked the trial court to allow him to proceed pro
se and filed motions without the aid of counsel. The Defendant was belligerent and
verbally abusive to Mr. Walwyn’s and to Mr. Byrd’s staffs. He left messages on
Mr. Byrd’s voicemail, which were played for the trial court, threatening to assault
Mr. Byrd in court. As indicated by the trial court, the Defendant was difficult or
hostile towards each of his four appointed counsel, and the Defendant even spit on
Mr. Byrd in court. Mr. Walwyn and Mr. Byrd both advised the trial court that the
Defendant was making it difficult, if not impossible, for them to represent him. On
several occasions, the Defendant refused to come into the courtroom and refused to
participate in the proceedings that he attended, turning his back to the trial judge
during one proceeding. This evidence supports the trial court’s finding that the
Defendant was engaging in delay tactics to prevent the case from going to trial.

Even though the forfeiture of counsel occurred prior to trial, based on these facts,
we conclude that the Defendant’s behavior was “sufficiently egregious to support
a finding that he forfeited his right to counsel” and in such a situation, the trial court
had no other choice than to conclude that the Defendant had forfeited his right to
counsel. Carruthers [v. Mays], 35 S.W.3d [516,] 550 [Tenn. 2000]. Due to
numerous delays caused by the Defendant, this case was not tried until three years
after the crime was committed. The Defendant was uncooperative or refused to
participate in multiple proceedings, and he repeatedly demanded that he be
appointed a new attorney or be allowed to represent himself. The Defendant’s
threatening and abusive behavior towards his attorneys and their staff seemed to
escalate with each new appointment of counsel. Indeed, the Defendant spit on his
fourth attorney and threatened to physically assault him on multiple occasions. In
such a situation, the trial court would be hard-pressed to appoint a fifth attorney
without serious concern for his or her safety.

Accordingly, we conclude that the Defendant’s behavior warranted a forfeiture of
the right to counsel. We pay close heed to the admonishment in Carruthers that “a
finding of forfeiture is appropriate only where a defendant egregiously manipulates

8 Attorney Walwyn represented Petitioner for about fourteen months, and Attorney Byrd represented
him for the next five months before the trial court ruled that Petitioner would represent himself with Byrd
as elbow counsel on October 26, 2012. Attorney Byrd was then briefly reappointed to represent Petitioner,
at Petitioner’s request, in advance of trial set for April 8, 2013.
the constitutional right to counsel so as to delay, disrupt, or prevent the orderly
administration of justice.” 35 S.W.3d at 550. We conclude that, in this case, “the
record demonstrates such egregious manipulation” and, thus, a finding of forfeiture
was proper. Id. The Defendant is not entitled to relief as to this issue.

Carter, 2016 WL 7799281, at *16–17.
As this ruling shows, the TCCA reasonably considered Petitioner’s treatment of Attorney
Walwyn and Attorney Byrd to reflect escalating hostility toward court-appointed attorneys that
reached an unacceptable crescendo when Petitioner left threatening voicemails on Attorney Byrd’s
office phone six days before trial was set to begin. This Court’s review of the voicemails leads it
to agree with the TCCA’s conclusion that the trial court would have been “hard-pressed to appoint
a fifth attorney without serious concern for his or her safety.”9 See id. at *16.
As a final note, Petitioner contends that the TCCA’s reference to him spitting on Attorney
Byrd is unsupported by the record because Byrd did not testify about this incident at the April 4,
2013, hearing where the trial court made its forfeiture ruling. (Doc. No. 37-6 at 3). That may be
so, but the trial court made a note of the spitting incident shortly after it occurred in its written
order denying one of Attorney Byrd’s motions to withdraw on September 25, 2012. (Doc. No. 19-
2 at 11). Given this contemporaneous record of the spitting incident occurring, it was reasonable
for the TCCA to include the incident as part of its rationale for affirming the forfeiture ruling.
For all of these reasons, reviewing the TCCA’s forfeiture ruling with AEDPA deference,
Petitioner is not entitled to habeas relief for his claim that the court violated his right to counsel by
requiring him to represent himself at trial.

9 Petitioner’s threatening language toward Attorney Byrd included the following: “I don’t want you
to represent me at trial, you need to file a motion to withdraw because if I sit next to you I will stab you in
your [expletive removed] face and keep on stabbing you in your face because you is not my counsel, you
is not my attorney, you can take this message how you want to take it. . . . Withdraw off my [expletive
removed] case or I will catch assault charge on you . . . . I’m asking you to get off my case before I catch
an assault charge on you in open court. You can take this message to the judge, whoever you want to take
it to.” (Doc. No. 22, manual filing rec’d Apr. 26, 2021).
C. Procedurally Defaulted
There are two claims remaining, both asserting that the trial court erred. In Claim 2,
Petitioner asserts that the trial court improperly allowed Petitioner to begin representing himself
on October 26, 2012. (Doc. No. 37 at 7; Doc. No. 37-2). And in Claim 3, Petitioner asserts that the
trial court failed to rule on several pro se pretrial motions he filed while representing himself on

October 30, 2012. (Doc. No. 37 at 8–9; Doc. No. 37-3 at 2–3, 7–8, 12).
Respondent failed to address both of these claims in its Answer. As Petitioner rightly notes
(see Doc. No. 49), Respondent did not recognize Claim 2 as an independent ground for relief, and
instead seemingly assumed that Claim 2 is entirely duplicative of Claim 6 (Petitioner’s separate
challenge to the trial court’s forfeiture ruling). (See Doc. No. 38 at 24 (addressing “Grounds two
and six” together)). Respondent also did not recognize Claim 3 as an independent ground for relief.
(See id.). One option to remedy Respondent’s oversight would be for the Court to direct
Respondent to file a new Answer. (See Doc. No. 16 at 3 (warning Respondent that failure to file
an adequate Answer “may result in Respondent being directed to file a new Answer”)). But

Respondent has already filed the available state court record, and the Court has already expended
considerable resources sifting through the record to address all of Petitioner’s other claims to this
point. This effort has led the Court to conclude, as explained below, that Claims 2 and 3 are
procedurally defaulted.
“Procedural default is generally an affirmative defense.” McNeill v. Bagley, 10 F.4th 588,
595 (6th Cir. 2021) (collecting cases). So Respondent, as the party defending this case, would
ordinarily be “‘obligated to raise’ and ‘preserv[e]’” procedural default “if it is not to ‘lose the right
to assert the defense thereafter.’” Trest v. Cain, 522 U.S. 87, 89 (1997) (quoting Gray v.
Netherland, 518 U.S. 152, 166 (1996)). But “in appropriate circumstances,” a federal court may
take the initiative on its own to “raise a petitioner’s procedural default.” Day v. McDonough, 547
U.S. 198, 206 (2006) (collecting circuit court cases).
The Court exercises its discretion to take that approach for two main reasons. First, it is in
the interest of judicial economy—and the interest of the parties—for the Court to avoid prolonging
these proceedings by ordering a new Answer if the Court believes, as it does here, that raising

procedural default on its own provides a straightforward path to resolving Claims 2 and 3. See
Sheffield v. Burt, 731 F. App’x 438, 441 (6th Cir. 2018) (citations omitted) (“[W]here a
straightforward analysis of settled state procedural default law is possible, federal courts cannot
justify bypassing the procedural default issue.”). Second, Respondent, to reiterate, did not
recognize Claims 2 and 3 as independent grounds for relief, so there was no “explicit and deliberate
waiver of its procedural-default defense.” See Maslonka v. Hoffner, 900 F.3d 269, 277 & n.1 (6th
Cir. 2018) (citing Wood v. Milyard, 566 U.S. 463, 472–73 (2012) (noting that overriding a
deliberate waiver of procedural default would be an abuse of discretion)). The Court will therefore
proceed with a procedural default analysis of Claims 2 and 3, to which Petitioner will have an

opportunity to respond. See Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir. 2005) (citing
Lorraine v. Coyle, 291 F.3d 416, 426 (6th Cir. 2002) (“The main concern with raising procedural
default sua sponte is that a petitioner not be disadvantaged without having had an opportunity to
respond.”)).
1. Claim 2—Allowing Petitioner to Represent Himself on October 26, 2012
On October 26, 2012, the trial court held a hearing on Attorney Byrd’s third motion to
withdraw, granted the motion, and ruled that Petitioner would represent himself with Byrd as
elbow counsel. Petitioner alleges that he told the court at that hearing that he wanted to represent
himself, but he asserts in Claim 2 that the court failed to ensure that his waiver of counsel was
knowing and intelligent. (See Doc. No. 37-2 at 2–3).
Petitioner did not make this argument to the TCCA at any point. See Carter, 2016 WL
7799281 (direct appeal); Carter, 2019 WL 1110308 (post-conviction appeal); Carter, 2020 WL
5558144 (appeal from denial of third state habeas corpus petition). And no state court remedies
remain for doing so. See Tenn. Code Ann. § 40-30-102(c) (establishing Tennessee’s “one-petition”
limitation on post-conviction relief); Hodges v. Colson, 727 F.3d 517, 530 (6th Cir. 2013)

(explaining the three narrow circumstances in which a state prisoner may file a motion to reopen
post-conviction proceedings, none of which applies to these claims). So Claim 2 is procedurally
defaulted. See Bagley, 696 F.3d at 483 (citing O’Sullivan v. Boerckel, 526 U.S. 838, 847–48
(1999)) (“When a petitioner has failed to present a legal issue to the state courts and no state
remedy remains available, the issue is procedurally defaulted.”).
The Sixth Circuit has confirmed that the type of claim presented in Claim 2—a claim that
a trial court did not exercise appropriate care when allowing a defendant to represent himself—is
subject to the doctrine of procedural default, just as any other claim. See Carruthers, 889 F.3d at
289 (explicitly rejecting the argument that “a claim of total deprivation of counsel at a critical stage

in the criminal proceedings cannot be defaulted because it alleges structural constitutional error”);
Stanfill v. Adams, No. 19-5925, 2020 WL 13563356, at *2 (6th Cir. Mar. 2, 2020) (denying
certificate of appealability for a claim like Claim 2 because it was procedurally defaulted and the
petitioner “failed to argue that the procedural default should be set aside due to cause and prejudice
or actual innocence”). Claim 2, therefore, is not subject to review in this federal habeas proceeding
unless Petitioner can “establish ‘cause’ and ‘prejudice,’ or a ‘manifest miscarriage of justice.’”
Middlebrooks, 843 F.3d at 1134 (citing Sutton, 745 F.3d at 790–91).
As cause to overcome the default of Claim 2, Petitioner argues that appellate counsel was
ineffective for failing to raise this issue on direct appeal. (Doc. No. 37 at 7). This type of argument
can, in theory, provide a pathway to demonstrating cause for a default. See Hodges, 727 F.3d at
530 (citing , 477 U.S. at 492). But “an ineffective-assistance-of-counsel claim asserted as cause
for the procedural default of another claim can itself be procedurally defaulted.” Id. (quoting
Edwards v. Carpenter, 529 U.S. 446, 453 (2000)). And Petitioner did not present the TCCA with
a claim of appellate counsel ineffectiveness that relates to Claim 2. See Carter, 2019 WL 1110308
(post-conviction appeal). So Petitioner has not demonstrated the cause necessary to obtain review

of Claim 2.
Petitioner also fails to show a manifest miscarriage of justice. “This exception has been
applied only when a habeas petitioner has demonstrated that he is actually innocent.” Hodges, 727
F.3d at 532 (citing Carter v. Mitchell, 443 F.3d 517, 538 (6th Cir. 2006)). A credible claim of
actual innocence must begin with “new reliable evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented
at trial.” House v. Bell, 547 U.S. 518, 537 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 324
(1995)). Petitioner has not presented any new evidence of innocence, so he cannot rely on this
potential pathway to obtaining review of Claim 2.

For all of these reasons, it appears that Claim 2 is clearly barred from review in this case
based on the doctrine of procedural default. Before making a final ruling on this claim, however,
Petitioner will have an opportunity to respond to the Court’s analysis on this issue.
2. Claim 3—Failure to Rule on Pro Se Pretrial Motions
Four days after the trial court ruled that Petitioner would represent himself, on October 30,
2012, Petitioner filed several pro se motions. In Claim 3, Petitioner asserts that the trial court erred
by failing to rule on these motions. (Doc. No. 37 at 8–9; Doc. No. 37-3 at 2–3, 7–8, 12).
Petitioner raised this claim on post-conviction appeal, and the TCCA ruled that Petitioner
had waived it by not raising it on direct appeal. See Carter, 2019 WL 1110308, at *8 (citing Tenn.
Code Ann. § 40-30-106(g) (“To the extent that the petitioner is referring to the trial court’s failure
to rule on pro se pleadings filed prior to trial, any claim of error in this regard that occurred prior
to trial has been waived by the petitioner’s failure to present it as a ground for relief on direct
appeal.”)). Tennessee’s waiver rule is “an ‘adequate and independent’ state ground on which the
state can rely to foreclose review of a federal constitutional claim.” See McNeill, 10 F.4th at 595
(quoting Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)); Hutchison v. Bell, 303 F.3d 720,

738 (6th Cir. 2002) (citations omitted). And the TCCA “actually enforced [this] state procedural
sanction” by not reviewing Claim 3 further. See McNeill, 10 F.4th at 595 (quoting Maupin, 785
F.2d at 138). So Claim 3 is procedurally defaulted. See Davila, 582 U.S. at 527 (citing Beard v.
Kindler, 558 U.S. 53, 55 (2009) (“[A] federal court may not review federal claims that were
procedurally defaulted in state court—that is, claims that the state court denied based on an
adequate and independent state procedural rule.”)).
As noted above, Petitioner properly exhausted a claim that appellate counsel was
ineffective for failing to raise Claim 3 on direct appeal. As an independent ground for federal
habeas relief, the Court reviewed that claim of appellate ineffectiveness with AEDPA deference

in its analysis of Claim 3.B. Smith v. Warden, Toledo Corr. Inst., 780 F. App’x 208, 225 (6th Cir.
2019) (citing Joseph v. Coyle, 469 F.3d 441, 459 (6th Cir. 2006)). But as an assertion of cause to
excuse a procedural default, this claim of appellate ineffectiveness is subject to de novo review.
Id. (citing Joseph, 469 F.3d at 459). So the Court will revisit appellate counsel’s treatment of Claim
3 on direct appeal in this context.
Even on de novo review, it is difficult for a petitioner to establish that counsel was
ineffective for failing to raise one claim over another on direct appeal. See Robbins, 528 U.S. at
288 (citing Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986) (“[I]t is still possible to bring a
Strickland claim based on counsel’s failure to raise a particular claim [on appeal], but it is difficult
to demonstrate that counsel was incompetent.”)). That is because the hallmark of effective
appellate advocacy is raising “only those arguments most likely to succeed,” and not “every
nonfrivolous argument.” Davila, 582 U.S. at 533 (citations omitted). “Declining to raise a claim
on appeal, therefore, is not deficient performance unless that claim was plainly stronger than those
actually presented to the appellate court.” Id. (citing Robbins, 528 U.S. at 288). And a showing of
deficiency must be accompanied by a showing of prejudice, which is “‘a reasonable probability

that . . . [the petitioner] would have prevailed on his appeal’ had counsel raised the unreasonably
omitted issues.” Smith, 780 F. App’x at 230 (quoting Robbins, 528 U.S. at 288).
Petitioner has not shown deficiency or prejudice. As for deficiency, appellate counsel
testified at the evidentiary hearing that he recalled Petitioner asking him to raise Claim 3 on direct
appeal, but he chose not to because he did not think that “[t]he pro se motions . . . added anything
to the argument [they] were making at the Court of Appeals.” (Doc. No. 20-21 at 12). Appellate
counsel also testified that, based on his recollection at the time—about two-and-a-half years after
filing the appellate brief—Petitioner’s pro se pretrial motions “really rehash[ed]” the issues raised
in the motions to suppress filed by Attorney Walwyn and Attorney Byrd, and those suppression

issues were already being raised. (Id.). Petitioner attempts to undermine this testimony by arguing
that his pro se pretrial motions addressed more than just suppression issues. (See Doc. No. 37-3 at
3–7). But Petitioner fails to recognize that appellate counsel’s testimony about rehashing
suppression issues was equivocal. (See Doc. No. 20-21 at 12 (“[A]gain, this has been at least a
couple of years.”)). And the important takeaway from appellate counsel’s testimony is that he was
aware of Petitioner’s desire to raise Claim 3 on direct appeal but made a strategic decision not to
include it. That decision was not deficient unless Claim 3 was clearly stronger than the eight issues
appellate counsel did raise. Petitioner simply fails to make this required showing of comparative
strength, particularly with respect to the forfeiture-of-counsel and suppression rulings that
appellate counsel zealously (though unsuccessfully) challenged. (See Doc. No. 20-5 at 24–47
(arguing the forfeiture and suppression issues)); Carter, 2016 WL 7799281, at *14–19 (TCCA’s
analysis of the forfeiture and suppression issues). Petitioner, accordingly, has not shown that
appellate counsel was deficient for failing to raise Claim 3 on direct appeal. See Halvorsen v.
White, 746 F. App’x 489, 501 (6th Cir. 2018) (citing Barnes, 463 U.S. at 752) (“Appellate
advocacy is not a ‘kitchen-sink’ activity; it demands selectivity of argument.”).

As for prejudice, the record reflects that Petitioner filed four pro se pretrial motions on
October 30, 2012, including motions for a bill of particulars, to dismiss the indictment, to suppress
evidence, and to disclose grand jury materials. For starters, Petitioner does not attempt to explain
how the pro se motion for grand jury materials presented a meritorious appeal issue. And the pro
se suppression motion did essentially rehash the suppression issues that were actually raised and
rejected on direct appeal. (See Doc. No. 19-2 at 62–88 (pro se motion challenging the warrantless
seizure of Petitioner’s vehicle by a law enforcement officer operating outside the parameters of his
jurisdiction)); Carter, 2016 WL 7799281, at *17–19. So no prejudice there.
Petitioner argues that the trial court’s failure to rule on the pro se motion for a bill of

particulars prevented him from learning how the State arrived at the $60,000+ valuation of the
stolen comic books in the superseding indictment. (Doc. No. 37-3 at 6). But the record reflects that
Petitioner was provided that information anyway. At the hearing on Petitioner’s motion for new
trial, Attorney Byrd testified that he specifically discussed this issue with Petitioner and explained
his strategy for attacking the $60,000+ valuation at trial, which included cross-examining Dr.
Clark’s expected testimony on the subject. (Id. at 50–51 (“Q. And you’re aware that [Dr. Clark is]
able to testify to the value of his own property? A. And I explained that to Mr. Carter.”)). And Bret
Gunn, an attorney representing the State, testified that he interacted with Petitioner personally
while Petitioner was representing himself before trial. (Id. at 57). Gunn testified that he specifically
recalled giving Petitioner a copy of “the spreadsheet that [Dr. Clark] had done that detailed the
comic books that were taken and his estimation of the value.” (Id. at 58). Petitioner, accordingly,
has not shown that a bill of particulars would have contributed to his defense.
Finally, Petitioner states that the pro se motion to dismiss the indictment raised three
arguments, but none have merit. First, Petitioner argued that the indictment “fail[ed] to state the
facts constituting the offense with a degree of certainty.” (Doc. No. 37-3 at 5). This is an apparent

reference to a Tennessee statute requiring an indictment to “state the facts constituting the offense
in ordinary and concise language, without prolixity or repetition, in a manner so as to enable a
person of common understanding to know what is intended and with that degree of certainty which
will enable the court, on conviction, to pronounce the proper judgment.” Tenn. Code Ann. § 40-
13-202. But Tennessee courts “eschew strict pleading requirements for indictments,” State v.
Duncan, 505 S.W.3d 480, 485 (Tenn. 2016), and “‘indictments which achieve the overriding
purpose of notice to the accused will be considered sufficient to satisfy both constitutional and
statutory requirements.’” Id. at 491 (quoting State v. Hammonds, 30 S.W.3d 294, 300 (Tenn.
2000)). The Tennessee Supreme Court has “held that a specific reference within the indictment to

the relevant statute may provide the accused sufficient notice of the charged offense.” State v.
Smith, 492 S.W.3d 224, 241 (Tenn. 2016) (citing State v. Sledge, 15 S.W.3d 93, 95 (Tenn. 2000);
State v. Carter, 121 S.W.3d 579, 587 (Tenn. 2003)). Here, both counts of the superseding
indictment cite the relevant statute, and the Court concludes that it easily passes muster under
Tennessee’s standard for sufficient indictments. (See Doc. No. 19-1 at 144–45).
Second, Petitioner argued that the indictment should have been dismissed because it
“fail[ed] to show a state of facts bringing the offense within the jurisdiction of the county in which
the indictment was preferred.” (Doc. No. 37-3 at 6). This is an apparent reference to another state
statutory requirement. See Tenn. Code Ann. § 40-13-208 (“It is not necessary for the indictment
to allege where the offense was committed, but the proof shall show a state of facts bringing the
offense within the jurisdiction of the county in which the indictment was preferred.”). But as
discussed above with regard to Claim 1—Petitioner’s challenge to the Davidson County Criminal
Court’s subject matter jurisdiction—the state courts have explained to Petitioner why Davidson
County had jurisdiction over Petitioner’s criminal case under state law. See Carter, 2019 WL
1110308, at *10 (explaining that a defendant may be prosecuted in any county where he committed

an element of the offense). So this challenge to the indictment was futile, and Petitioner did not
suffer prejudice from the trial court failing to rule on it.
The third and final argument in the pro se motion to dismiss the indictment was that the
indictment resulted from “an invalid process.” (Doc. No. 37-3 at 6). Petitioner does not flesh out
this argument with any detail, but to the extent that he is implying that the indictment should have
been dismissed because the seizure and search of his car were invalid, the trial court had already
denied the motions to suppress filed by Attorney Walwyn and Attorney Byrd by the time Petitioner
filed this pro se motion. Petitioner would not have obtained relief by relitigating suppression issues
through the framework of a motion to dismiss the indictment. So Petitioner did not suffer prejudice

from the trial court’s failure to address this argument.
For all of these reasons, Petitioner’s claim of appellate ineffectiveness with regard to Claim
3 is without merit under a de novo review, so it cannot excuse Claim 3’s procedural default. And
because Petitioner has not presented new evidence of innocence, he cannot rely on the actual
innocence gateway to obtaining review either. See House, 547 U.S. at 537. Accordingly, Claim 3
appears to be procedurally defaulted without cause. As with Claim 2, however, Petitioner will have
a chance to respond to this analysis before the Court makes a final ruling.
V. REQUEST FOR TRANSCRIPTS
As the Court noted at the outset of this Memorandum, Petitioner asked for transcripts of
three state court hearings that have not been transcribed. The requested transcripts pertain to: (1)
an alleged preliminary hearing that occurred on August 11, 2010; (2) an arraignment on the
superseding indictment that occurred on May 17, 2012; and (3) the hearing at which the trial court
granted Attorney Byrd’s third motion to withdraw and ruled that Petitioner would represent
himself with Byrd as elbow counsel on October 26, 2012. (See Doc. No. 23 at 2–3 (Petitioner’s
request); Doc. No. 19-1 at 148 (minute entry for May 17, 2012 hearing); Doc. No. 19-2 at 37

(minute entry for October 26, 2012 hearing)). Based on the analysis above, the Court finds these
requested transcripts unnecessary to resolve Petitioner’s claims.
In particular, Petitioner requested the alleged August 2010 preliminary hearing transcript
to support Claim 1, his challenge to the trial court’s subject matter jurisdiction. (Doc. No. 23 at 2–
3). But this transcript would not impact the Court’s conclusion that Claim 1 is not a cognizable
ground for relief in a federal habeas proceeding. See Jones, 2021 WL 3411802, at *1 (quoting
Strunk, 27 F. App’x at 475 (“[A petitioner] cannot obtain habeas relief based on the state court’s
lack of subject-matter jurisdiction because ‘a state court’s interpretation of state jurisdictional
issues conclusively establishes jurisdiction for purposes of federal habeas review.’”)). Petitioner

did not attempt to explain the relevance of the May 2012 transcript, and now having analyzed
Petitioner’s claims, the Court sees none. And Petitioner requested the October 2012 transcript to
support Claim 2, his challenge to the procedure by which the trial court allowed him to waive his
right to counsel on October 26, 2012. (Doc. No. 23 at 3). Regardless of what was said at this
hearing, however, this transcript would not change the Court’s conclusion that Claim 2 appears to
be procedurally defaulted without cause. So the Court has no basis to order Respondent to either
transcribe and furnish or provide a narrative summary of this hearing. See Habeas Rule 5(c);
Vizcaino-Ramos v. Lindamood, No. 1:14-cv-01230, 2017 WL 5163588, at *4 (W.D. Tenn. Nov.
7, 2017) (“[I]f the claim is procedurally defaulted and the default is unexcused, discovery on the
claim would be futile[.]”).
VI. CONCLUSION
For these reasons, all but two of Petitioner’s claims will be DENIED.
The remaining claims are: Claim 2, asserting that the trial court erred by permitting
Petitioner to represent himself on October 26, 2012; and Claim 3, asserting that the trial court
erred by failing to rule on pro se pretrial motions Petitioner filed on October 30, 2012. These two
claims appear to be subject to dismissal as well, based on the doctrine of procedural default. But
because the Court is raising procedural default on its own initiative, Claim 2 and Claim 3 will be
held in abeyance to give Petitioner an opportunity to respond to the Court’s procedural default
analysis. Any response Petitioner files MUST follow the instructions in the Order accompanying
this Memorandum.
An appropriate Order shall enter.
hl X. Cody
UNITED STATES DISTRICT JUDGE

39

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10669698. Public record. Not legal advice.