Brown v. Perry

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

KENNETH BROWN, )

)

Petitioner, )

)

v. ) Case No. 2:20-cv-02315-SHL-atc

)

JOHNNY FITZ, )

)

Respondent. )

ORDER DENYING PETITION PURSUANT TO

28 U.S.C. § 2254, DENYING A CERTIFICATE OF

APPEALABILITY, CERTIFYING THAT AN APPEAL WOULD

NOT BE TAKEN IN GOOD FAITH, AND DENYING LEAVE

TO PROCEED IN FORMA PAUPERIS ON APPEAL

Before the Court are the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a

Person in State Custody (“§ 2254 Petition”), filed by Petitioner, Kevin Brown, (ECF No. 1);

Respondent’s Answer to Petition for Writ of Habeas Corpus (“Answer”), filed by Respondent,

Johnny Fitz, (ECF No. 43); Brown’s Reply to Answer to Petition for Writ of Habeas Corpus

(“Reply”), (ECF No. 46); and Fitz’s Sur-Reply, (ECF No. 49). For the reasons stated below, the

Court DENIES the § 2254 Petition.

I. BACKGROUND

A. State Court Procedural History

On April 21, 2011, a grand jury in Shelby County, Tennessee returned a thirty-count

indictment, Indictment Number 11-02623, against Brown; his brother, Devon Brown; and David

Richardson. (ECF No. 42-27 at PageID 2916-46.) Counts 1 through 13 charged all defendants

with the attempted first degree murder of Lemarcus Moore (Count 1), Felix Williams (Count 2),

Christopher Braxton (Count 3), Kenneth Baker (Count 4), Travis D. Britton (Count 5), Robrecus

Braxton (Count 6), Nakia Greer (Count 7), Chymia Baker (Count 8), Jalon Baker (Count 9),

Rodney Davenport (Count 10), Terriance Webb (Count 11), Cleotha Norwood (Count 12), and

Kimberly Jamerson (Count 13). (Id. at PageID 2916-28.) Counts 14 through 26 charged all

defendants with the aggravated assault of Lemarcus Moore (Count 14), Felix Williams (Count 15),

Christopher Braxton (Count 16), Kenneth Baker (Count 17), Travis D. Britton (Count 18),

Robrecus Braxton (Count 19), Nakia Greer (Count 20), Chymia Baker (Count 21), Jalon Baker

(Count 22), Rodney Davenport (Count 23), Terriance Webb (Count 24), Cleotha Norwood (Count

25), and Kimberly Jamerson (Count 26). (Id. at PageID 2929-41.) Count 28 charged Brown

with employing a firearm during the commission of a felony. (Id. at PageID 2943.) Count 30

charged all defendants with reckless endangerment with a deadly weapon, thereby placing

DeAngelo Smith, Bianca Nevels, Sonja Watkins, Dakarrionah Laury, Amber Laury, and Whitney

Henderson in imminent danger of death or serious bodily injury. (Id. at PageID 2945.) On

November 29, 2011, the grand jury returned Indictment Number 11-07432, which charged the

same three defendants with the first degree murder of Kimberly Jamerson. (ECF No. 42-1 at

PageID 565-66.)

A jury trial on the charges against Brown commenced in the Shelby County Criminal Court

on October 1, 2012. (Id. at PageID 606.) On October 6, 2012, the jury convicted Brown of first

degree murder in Indictment Number 11-07432, (Id. at PageID 621), and also returned guilty

verdicts on Counts 1 through 12, 14 through 25, 28, and 30 in Indictment Number 11-02623. (Id.;

ECF No. 42-24 at 2797-98.)1 That day, the trial judge sentenced Brown to life imprisonment with

1 Counts 13 and 26—the attempted murder and aggravated assault counts against the

murder victim, Kimberly Jamerson—had previously been dismissed.

2

the possibility of parole for the murder in Indictment Number 11-07432. (ECF No. 42-24 at

PageID 2803-04.) A judgment was entered on October 6, 2012 for that indictment. (ECF No.

42-1 at PageID 629.)

A sentencing hearing on Indictment Number 11-02623 was held on November 16, 2012,

at which time the trial judge merged the convictions for attempted murder and aggravated assault

and sentenced Brown to a term of imprisonment of twenty-five (25) years on Counts 1 through 12,

six (6) years on Counts 14 through 25, six (6) years on Count 28, and two (2) years on Count 30.

The sentences for Counts 1 through 12 and for Count 30 were ordered to be served as a Range I

standard offender at 30% release eligibility, and the sentence for Count 28 was ordered to be served

at 100%. The trial judge ordered that those sentences and the life sentence for the murder be

served consecutively to each other, resulting in a total sentence of life imprisonment with the

possibility of parole plus 308 years. (ECF Nos. 42-25 at PageID 2861-66, 42-27 at PageID 2947-

73.) The Tennessee Court of Criminal Appeals (“TCCA”) affirmed. State v. Brown, No.

W2013-00329-CCA-R3-CD, 2014 WL 5092906, at *18 (Tenn. Crim. App. Oct. 9, 2014) (“Brown

I”).

On May 14, 2015, Brown filed a pro se Petition in Support of Post-Conviction Relief and

a supporting memorandum in the Shelby County Criminal Court. (ECF No. 42-34 at PageID

3123-29, 3130-55.) After counsel was appointed to represent Brown, (id. at PageID 3159), an

Amended Petition for Post-Conviction Relief was filed on September 22, 2015, (id. at PageID

3163-67). The State responded on September 22, 2015, and December 7, 2015. (Id. at PageID

3168-69.) A hearing on the post-conviction petition was held on July 7, 2017, at the conclusion

of which the post-conviction court denied relief. (Id. at PageID 3170; ECF No. 42-35 at PageID

3

3346-68.) A written order denying relief was entered on August 4, 2017. (ECF No. 42-34 at

PageID 3171-3209.) The TCCA later affirmed. Brown v. State, No. W2017-01755-CCA-R3-

PC, 2019 WL 931735, at *14 (Tenn. Crim. App. Feb. 22, 2019) (“Brown II”), appeal denied,

(Tenn. July 25, 2019) (ECF No. 42-44).

In its opinion on direct appeal, the TCCA summarized the evidence introduced at trial.

Brown I, 2014 WL 5092906, at *1-10. The events at issue occurred on July 3, 2010, at 2306

Northmeade in Memphis. During the initial events, approximately thirty people were present at

the home for a Fourth of July celebration. Kenneth Brown and Devon Brown drove up and stated

that someone at the residence had taken some marijuana from them valued at five dollars ($5.00).

However, the person who had allegedly taken the marijuana was not present.

The men drove away, but returned a few minutes later with David Richardson. Felix

Williams gave Kenneth Brown five dollars and asked the men to leave. Robrecus Braxton

testified that the car nearly “clipped” him when it pulled away. In response, Braxton threw a beer

can into the open passenger window of the car. A fist fight then ensued. The men later drove

away, threatening to return. Id. at *2-3, 6.

Several hours later, the three men returned, heavily armed. Numerous gunshots were

fired, killing Kimberly Jamerson and striking Lemarcus Moore. Id. at *3-4. Bullets also hit the

house, where young children were present. Id. at *5-6. Two neighbors, Mark Chambers and

Steve Chambers, also fired shots as they attempted to rescue Moore. Id. at *4.

Kenneth Brown gave a statement to the police in which he recounted his version of the

marijuana transaction and subsequent events. After accepting the five dollars, Kenneth Brown

attempted to drive away. However, he overheard people at the scene “talking violent” before

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someone threw a beer can into his car, hitting him. Id. at *8. After a fist fight, Kenneth Brown

returned home, where he saw people from Northmeade in a car near his house. In response, the

Brown brothers and Richardson returned to Northmeade. Kenneth Brown was armed with a

Glock .45, Devon Brown had a shotgun, and Brown did not know what kind of gun Richardson

had. Kenneth Brown told the police he fired six to eight shots with no intent to shoot anyone.

He did not pay attention to what Devon Brown and Richardson were doing. Id. at *8.

B. Brown’s § 2254 Petition2

On April 27, 2020, Brown, through counsel, filed his § 2254 Petition, which presents the

following claims:

1. Denial of right to compulsory process due to the trial court’s failure to

compel the production of Beatrice Vaulx or, alternatively, due to the

ineffective assistance of trial counsel in failing to subpoena Vaulx or

demand a material witness warrant, (ECF No. 1 at PageID 4-7);

2. Admission of involuntary confession, (id. at PageID 7-9); and

3. Omission of jury instruction on proximate cause of death, including that

counsel was ineffective in failing to request such an instruction, (id. at

PageID 9-12).

On September 22, 2022, the Court directed the Warden, Johnny Fitz, to file the state court

record and a response to the § 2254 Petition. (ECF No. 38.) Fitz filed the record on

November 17, 2022, and his Answer on November 21, 2022. (ECF Nos. 42-43.) Brown,

through his second retained counsel, filed his Reply on January 19, 2023. (ECF No. 46.) On

February 16, 2023, the Warden filed his Sur-Reply, for which he had received leave of Court.

(ECF No. 49.)

2 The lengthy procedural history of this matter and the various motions filed have been

addressed in previous orders and will not be repeated here.

5

II. ANALYSIS

A. Failure to Present the Testimony of Beatrice Vaulx (Claim 1)

In Claim 1, Brown argues that his right to compulsory process was violated because a fact

witness, Beatrice Vaulx, was not called to testify on his behalf at trial and at the post-conviction

hearing. Brown further avers that trial counsel and post-conviction counsel were ineffective in

failing to secure the testimony of Vaulx. (ECF No. 1 at PageID 4-7.)

At trial, defense counsel gave notice that they intended to call a witness, later identified as

Vaulx, who was in the hospital but whose doctor advised would be available the next morning.

(ECF No. 42-23 at PageID 2610.) However, Vaulx did not appear the next day. Defense counsel

told the trial judge that its investigator had been sent to the hospital to see if the sleep study that

Vaulx had been participating in was over and, if so, to bring her to court. (ECF No. 42-24 at

PageID 2642.) Later that morning, the defense rested without calling Vaulx. (Id. at PageID

2651.) The defense made the following offer of proof as to the anticipated substance of Vaulx’s

testimony:

[H]ad Ms. [V]aulx been here, we believe that she would have testified that she had

given a statement to Sgt. Merritt on or about July the 7th, 2010. She would have

stated that on July the 6th of 2010, that she telephoned the MPD, specifically I

believe it was Officer Merritt regarding this particular case, that she is a resident on

Ladue, the street that is in front of or out from Northmeade, specifically 3840

Ladue. She stated to him that she wanted to provide some information based on

what she remembered from July 4th of 2010.

Her statement was that she was sleeping when she had heard a number of

shots being fired. She stated that she woke up and she looked out of her bedroom

window, and that her bedroom window faces 2706 Northmeade. She stated that

she observed a large number of people running around the front lawn in 2706

North—Northmeade.

She also stated that she observed an unidentified black male being helped

into a red vehicle that was parked on the street in front of the residence. Ms.

6

[V]aulx also stated that she observed a black male placing a, quote, sawed-off

shotgun into the back seat of that vehicle. She also stated that she would not be

able to identify the individual that placed the shotgun into the back seat of that red

vehicle because it was dark and she did not know the individual that was handling

the gun.

(Id. at PageID 2656-57.) The trial judge stated that he was “strained to see how that [anticipated

testimony] would have been material to any issues that are before the jury.” (Id. at PageID 2658.)

Specifically, there was “no indication that would indicate that shotgun shells were found [at the

crime scene] or that a shotgun was fired.” (Id.)

In denying Brown’s motion for a new trial, the trial judge noted that he delayed the close

of proof to afford the defense an opportunity to produce Vaulx, but she did not appear. (ECF No.

42-26 at PageID 2898-99.) The trial judge reiterated that, based on the offer of proof, the

testimony “would not have made a difference.” (Id. at PageID 2899.)3

1. Ineffective Assistance of Trial Counsel Sub-Claim

Brown’s claim that his trial counsel rendered ineffective assistance when he failed to offer

the witness is controlled by the standards stated in Strickland v. Washington, 466 U.S. 668, 687

(1984), which require a showing that “counsel’s performance was deficient” and that “the deficient

performance prejudiced the defense.” To establish deficient performance, a person challenging a

conviction “must show that counsel’s representation fell below an objective standard of

3 The trial judge also made the following, ambiguous statement: “[T]his Court did give

this witness a chance to get to Court and would have issued a material witness arrest warrant and

would have had the Sheriff go out and arrest this person and bring her to Court. She chose not to

be present, and this Court cannot govern a witness’s failure to appear in Court after being

subpoenaed by the Defense.” (Id. at PageID 2898-99.) It is unclear whether the trial judge

means that he would have issued a material witness warrant but the defense did not ask for one, or

that he did not believe he had the power to enforce the defense subpoena. Whatever the case, the

remarks at trial and on the motion for a new trial make clear that the trial judge did not believe

Vaulx was a material witness.

7

reasonableness.” Id. at 688. A court considering an ineffective assistance claim must apply a

“strong presumption” that counsel’s representation was within the “wide range of reasonable

professional assistance.” Id. at 689. The challenger’s burden is to show “that counsel made

errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment.” Id. at 687. “The question is whether an attorney’s representation amounted

to incompetence under ‘prevailing professional norms,’ not whether it deviated from best practices

or most common custom.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Strickland,

466 U.S. at 690).

To demonstrate prejudice, a prisoner must establish “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. “It is not enough to show that the errors had some conceivable

effect on the outcome of the proceeding. Counsel’s errors must be so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.” Richter, 562 U.S. at 104 (internal

quotation marks and citation omitted); see also id. at 111-12 (“In assessing prejudice under

Strickland, the question is not whether a court can be certain counsel’s performance had no effect

on the outcome or whether it is possible a reasonable doubt might have been established if counsel

acted differently. . . . The likelihood of a different result must be substantial, not just

conceivable.”) (citations omitted); Wong v. Belmontes, 558 U.S. 15, 27 (2009) (per curiam) (“But

Strickland does not require the State to ‘rule out’ [a more favorable outcome] to prevail. Rather,

Strickland places the burden on the defendant, not the State, to show a ‘reasonable probability’

that the result would have been different.”).

8

At the post-conviction hearing, Erroll Harmon, Brown’s trial counsel, testified that he

attempted to interview Vaulx but was unable to locate her. He testified that “[w]e subpoenaed

her. We weren’t able to locate her. We had private investigators who were sent out to go and

speak with her.” (ECF No. 42-35 at PageID 3263.) Harmon believed that Vaulx’s testimony

could have been potentially important to Brown to show “that other people were shooting.” (Id.

at PageID 3264-65.) However, Vaulx did not appear at trial despite being under subpoena. (Id.

at PageID 3263.) Harmon agreed that the shell casings found at the Northmeade address were all

.9 millimeters and that a shotgun had not been fired in the vicinity. (Id. at PageID 3283.)

The post-conviction court denied relief. (Id. at PageID 3357-59, 3363-54; ECF No. 42-

34 at PageID 3198-99.) Brown raised the issue in his brief to the TCCA on the post-conviction

appeal. (ECF No. 42-38 at PageID 3401, 3430-36.) The TCCA denied relief on the merits.

Brown II, 2019 WL 931735, at *7-9. The TCCA first noted that Vaulx did not testify at the post-

conviction hearing and “[n]either the post-conviction court nor this court may speculate on what a

witness’s testimony might have been if introduced by defense counsel.” Id. at *8 (internal

quotation marks and citation omitted). Moreover, the TCCA concluded that trial counsel was not

ineffective:

[T]rial counsel in [Brown’s] case made extensive efforts to ensure that Vaulx

testified at trial. Trial counsel hired an investigator to locate her, subpoenaed her

for trial, and successfully obtained a continuance during [Brown’s] trial in an

attempt to secure her testimony. Unfortunately, despite all these efforts, trial

counsel was unable to present Vaulx’s testimony at trial. In light of trial counsel’s

conscientious and repeated efforts to obtain Vaulx’s testimony, [Brown] has failed

to prove that trial counsel was deficient in not presenting Vaulx’s testimony at trial.

Id. at *9. Finally, said the TCCA, Brown had not shown prejudice:

In addition, [Brown] has not shown that trial counsel’s failure to present

Vaulx prejudiced the outcome of his case. Vaulx’s statement to police shows that

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her testimony would not have changed the outcome of [Brown’s] trial. Vaulx told

police that after being awakened by the gunshots, she looked out her window and

observed an unidentified African-American man, whom she did not know and

could not identify, placing a sawed off shotgun in the backseat of a red vehicle.

While Vaulx’s statement might support the fact that there was another shooter the

night of the incident, it does not show that the unidentified man she observed fired

the fatal shot at Kimberly Jamerson. At trial, the jury heard substantial evidence

suggesting that the shooters at the Northmeade location, who were returning fire

from the shots fired by [Brown] and his co-defendants, were responsible for

Jamerson’s death. Because the jury heard evidence suggesting that there were

other shooters at the scene and because Vaulx never saw the man responsible for

killing Kimberly Jamerson, we conclude that Vaulx’s testimony would not have

changed the outcome of [Brown’s] trial.

Id.

Where, as here, a state prisoner’s claim has been adjudicated on the merits in state court, a

federal court can issue a writ only if the adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2). The petitioner carries the burden of proof for this “difficult to meet”

and “highly deferential standard,” which “demands that state-court decisions be given the benefit

of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal quotation marks and

citation omitted). The deference given to a state-court decision under Strickland is magnified

when reviewing a claim of ineffective assistance of trial counsel under 28 U.S.C. § 2254(d):

Establishing that a state court’s application of Strickland was unreasonable

under § 2254(d) is all the more difficult. The standards created by Strickland and

§ 2254(d) are both “highly deferential,” [Strickland, 466 U.S.] at 689; Lindh v.

Murphy, 521 U.S. 320, 333, n. 7 (1997), and when the two apply in tandem, review

is “doubly” so, Knowles [v. Mirzayance], 556 U.S. [111,] 123 [(2009)]. The

Strickland standard is a general one, so the range of reasonable applications is

substantial. 556 U.S., at 123. Federal habeas courts must guard against the

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danger of equating unreasonableness under Strickland with unreasonableness under

§ 2254(d). When § 2254(d) applies, the question is not whether counsel’s actions

were reasonable. The question is whether there is any reasonable argument that

counsel satisfied Strickland’s deferential standard.

Richter, 562 U.S. at 105 (parallel citations omitted).

A state court’s decision is “contrary” to federal law when it “arrives at a conclusion

opposite to that reached” by the Supreme Court on a question of law or “decides a case differently

than” the Supreme Court has “on a set of materially indistinguishable facts.” Williams v. Taylor,

529 U.S. 362, 412-13 (2000). “[A] run-of-the-mill state-court decision applying the correct legal

rule . . . to the facts of a prisoner’s case” does not “fit comfortably within § 2254(d)(1)’s ‘contrary

to’ clause.” Id. at 406. Here, the TCCA cited and applied the correct legal rule from Strickland

and Tennessee cases applying Strickland; therefore, the “contrary to” clause is inapplicable.

Brown II, 2019 WL 931735, at *6.

An “unreasonable application” of federal law occurs when 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.” Williams, 529 U.S. at 413. The state court’s

application of federal law must be “objectively unreasonable” for the writ to issue. Id. at 409. It

is not sufficient that the habeas court, in its independent judgment, determines that the state court

decision “applied clearly established federal law erroneously or incorrectly.” Renico v. Lett, 559

U.S. 766, 773 (2010) (citing Williams, 529 U.S. at 411).

As a condition for obtaining habeas corpus from a federal court, a state prisoner

must show that the state court’s ruling on the claim being presented in federal court

was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.

Richter, 562 U.S. at 103.

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Brown has not presented an argument that the TCCA’s resolution of Claim 1 was

objectively unreasonable. He cited no authority for the proposition that a defense attorney who

makes reasonable efforts to procure the testimony of a potential witness is ineffective in failing to

seek a material witness warrant. He cites 18 U.S.C. § 3144, addressing release or detention of a

material witness, (ECF No. 1 at PageID 6-7), but that provision applies to federal criminal trials.

Although Tennessee law provides that a material witness may be required to post bail “if it is

shown that the witness has refused or will refuse to respond to process,” Tenn. Code Ann.

§ 40-11-110(a), Brown does not discuss how defense counsel could have known that Vaulx would

not appear at trial after being subpoenaed. Given the trial judge’s conclusion that Vaulx’s

testimony would not have been material and his refusal to delay the trial further, this provision

likely would have been of no assistance to Brown.

Brown also does not address Vaulx’s failure to testify at the post-conviction hearing and

the TCCA’s conclusion that, even if she had testified consistent with her statement to police, he

suffered no prejudice. He has, therefore, failed to satisfy his burden of demonstrating that the

TCCA’s decision on Claim 1 “was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Richter, 562 U.S. at 103.

Finally, Brown has not established that the TCCA’s decision was based on an unreasonable

factual finding. “[W]hen a federal habeas petitioner challenges the factual basis for a prior state-

court decision rejecting a claim, . . . [t]he prisoner bears the burden of rebutting the state court’s

factual findings ‘by clear and convincing evidence.’” Burt v. Titlow, 571 U.S. 12, 18 (2013)

(quoting 28 U.S.C. § 2254(e)(1)). A state court factual determination is not “unreasonable”

12

merely because the federal habeas court would have reached a different conclusion. Wood v.

Allen, 558 U.S. 290, 301 (2010). Brown has not addressed the TCCA’s factual findings.

Consequently, he has not demonstrated that any are objectively unreasonable.

This aspect of Claim 1 is DENIED.

2. Denial of Compulsory Process Sub-Claim

Brown argues, in the alternative, that his right to compulsory process was violated when

the trial court failed to issue a material witness warrant sua sponte. (ECF No. 1 at PageID 7.) In

his Answer, the Warden argues that this aspect of Claim 1 was not properly exhausted in state

court and is barred by procedural default. (ECF No. 43 at PageID 3568.) The Court agrees. A

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

exceptions, the prisoner exhausted available state remedies by presenting the same claim sought

to be redressed in a federal habeas petition to the state courts pursuant to 28 U.S.C. §§ 2254(b) and

(c). Pinholster, 563 U.S. at 181. The petitioner must “fairly present” each claim to each

appropriate state court. Baldwin v. Reese, 541 U.S. 27, 29 (2004). 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), the claim is technically exhausted, but procedurally barred.

Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). To avoid procedural default, a habeas

petitioner in Tennessee must present his federal claims to the trial court and, on appeal, to the

TCCA. Covington v. Mills, 110 F. App’x 663, 665 (6th Cir. 2004).

To fairly present a federal claim, a prisoner must argue the same facts and legal theory in

the state courts and in his federal habeas petition. See Anderson v. Harless, 459 U.S. 4, 6-7

(1982); Picard v. Connor, 404 U.S. 270, 276-77 (1971); Hodges v. Colson, 727 F.3d 517, 529 (6th

13

Cir. 2013). “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.” Harless, 459 U.S. at 6

(citation omitted). In evaluating whether a prisoner has “fairly presented” a claim to a state

appellate court, the controlling document is the inmate’s brief. See Baldwin, 541 U.S. at 32

(“[O]rdinarily a state prisoner does not ‘fairly present’ a claim to a state court if that court must

read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a

federal claim in order to find material, such as a lower court opinion in the case, that does so.”)

Here, Brown did not exhaust a standalone claim that he was denied his right to compulsory

process. In his Reply, Brown argues that he can show cause and prejudice for his default because

it was due to the ineffective assistance of counsel. (ECF No. 46 at PageID 3581-82.) However,

a claim that a procedural default is due to the ineffective assistance of counsel can itself be

procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). Brown’s claim that

counsel failed to seek a material witness warrant appears to be distinct from his claim that counsel

failed to secure the appearance of Vaulx (and, if it is not, it is meritless for the reasons previously

stated). The Supreme Court’s decision in Martinez v. Ryan, 565 U.S. 1 (2012), is unavailable to

excuse Brown’s default because this aspect of Claim 1 is not a claim of ineffective assistance of

trial counsel. Brown’s standalone compulsory process claim is DENIED.

3. Ineffective Assistance of Post-Conviction Counsel

Brown’s claim that post-conviction counsel was ineffective in failing to secure Vaulx’s

testimony at the post-conviction hearing is not cognizable in habeas. The law is clear that “[t]he

ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction

14

proceedings shall not be a ground for relief in a proceeding arising under section 2254.” 28 U.S.C.

§ 2254(i). This aspect of Claim 1 is DENIED.

B. Admission of Brown’s Involuntary Confession (Claim 2)

In Claim 2, Brown complains that the trial court admitted his involuntary confession.

(ECF No. 1 at PageID 7-9.) Specifically, Brown argues that his Fifth Amendment rights were

violated “by the extraction of an involuntary confession while [Brown] faced serious pain and

distress from a gunshot wound.” (Id. at PageID 8.)

In his Answer, the Warden notes that Brown has changed the factual theory on which he

bases his claim regarding the admission of his confession. (ECF No. 43 at PageID 3568-69.) On

direct appeal, Brown exhausted a Fourth Amendment claim that he was arrested without probable

cause. (ECF No. 42-28 at PageID 2980, 3001-04.) The TCCA denied relief on the merits.

Brown I, 2014 WL 5092906, at *16-18.

Shifting gears, Brown now claims that his confession was involuntary under the Fifth

Amendment because the police interrogated him while he was suffering from a gunshot wound.

The Warden argues that this claim was not exhausted in state court and is now barred by procedural

default. (ECF No. 43 at PageID 3568-69.) The Court agrees. Brown did not present any Fifth

Amendment claim to the state courts. Because there is no longer any means of doing so, Claim 2

is barred by procedural default.4 Claim 2 is DENIED.

4 Although it is unnecessary to address at length the merits of a procedurally defaulted

claim, there is no evidence in the record that Brown sustained a gunshot wound. He raised no

such claim in the various proposed amendments he filed either pro se or through counsel. He did

not testify at the suppression hearing. The witnesses at that hearing testified that the only physical

injuries that were apparent on Brown were consistent with a fistfight. (ECF No. 42-13 at PageID

1041, 1055-56, 1089, 1090-91, 1113-15, 1148, 1149, 1150, 1164-65.) At no time when he was

15

C. Failure to Seek a Proximate Cause of Death Instruction (Claim 3)

In Claim 3, Brown argues that his trial counsel rendered ineffective assistance by failing to

seek a jury instruction regarding the proximate cause of death. (ECF No. 1 at PageID 9-12.)

Brown’s theory is that, given the large number of shots that were fired at the scene, the jury could

not determine beyond a reasonable doubt that he fired the shot that killed Kimberly Jamerson.

(Id. at PageID 11.) Brown contends that the trial judge should have used the following Tennessee

pattern jury instruction (“Instruction 42.14”):

Before the defendant can be convicted of any degree of homicide, the State must

have proven beyond a reasonable doubt that the death of the deceased was

proximately caused by the criminal conduct of the defendant . . . . The proximate

cause of death is that cause which, in natural and continuous sequence, unbroken

by any independent intervening cause, produces the death and without which the

death would not have occurred.

(Id.)5

being interrogated did Brown ask for medical attention. (Id. at PageID 1047-48, 1061, 1097,

1115, 1152.) Brown would have been examined by medical staff when he was first taken to the

Shelby County Jail; if he needed medical assistance, he would not have been booked into the Jail

or taken to the homicide office. (Id. at PageID 1056, 1126-29.)

5 As a preliminary matter, Claim 3 misstates the law. The State never undertook to

establish that Brown fired the bullet that killed Jamerson. The State’s theory was that Jamerson

was killed by Brown or by someone for whom Brown is criminally responsible. (See ECF No.

42-12 at PageID 976 (to convict Brown of first degree murder, the State must prove beyond a

reasonable doubt “that the defendant, or one for whom the defendant is criminally responsible,

unlawfully killed Kimberly Jamerson . . . .”).) The jury was instructed that Brown could be found

guilty on a theory of criminal responsibility “if the offenses were committed by the defendant’s

own conduct, by the conduct of another for which the defendant is criminally responsible, or both.

Each party to the offense may be charged with the commission of the offense.” (Id. at PageID

992.) “The defendant is criminally responsible for an offense committed by the conduct of

another if, acting with the intent to promote or assist the commission of the offense, or to benefit

in the proceeds or results of the offense, the defendant solicits, directs, aids, or attempts to aid

another person to commit the offense.” (Id. at PageID 993.)

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Brown raised Claim 3 during the post-conviction proceeding. The post-conviction court

denied relief on the merits. (ECF No. 42-34 at PageID 3208-09.) The issue was presented to the

TCCA on the post-conviction appeal. (ECF No. 42-38 at PageID 3401, 3437-41.) The post-

conviction court denied relief. Brown II, 2019 WL 931735, at *9-11. The TCCA concluded that

a proximate cause of death instruction was not warranted for the following reasons:

[Brown] has failed to establish that trial counsel was ineffective in failing to request

this instruction. We note that the proximate cause of death instruction is given

when there is evidence that the victim’s death was caused by an independent,

intervening act or omission that the defendant could not reasonably have

anticipated.

. . . .

Here, the proof showed that either [Brown] or his co-defendants fired the

fatal bullet or someone from the Northmeade location fired the fatal bullet, but there

was no evidence that Kimberly Jamerson’s death was caused by an independent,

intervening act or omission that the responsible party could not reasonably have

anticipated. Because pattern jury instruction 42.14 was clearly inapplicable to the

evidence presented at [Brown’s] trial, we conclude that [Brown] has failed to show

that trial counsel was deficient in failing to request this instruction or that such an

instruction would have changed the outcome of [Brown’s] trial. Accordingly,

[Brown] is not entitled to relief on this issue.

Brown II, 2019 WL 931735, at *10, 11.

Brown cannot satisfy his burden of demonstrating that the TCCA’s decision on this issue

is contrary to, or an unreasonable application of, Strickland, or that it is based on an unreasonable

factual determination. The TCCA, interpreting Tennessee law, held that Instruction 42.14 cannot

be used to support Brown’s argument that Jamerson might have been killed by someone other than

himself or his co-defendants. Rather, Instruction 42.14 would be warranted only if there was

evidence from which the jury could conclude that Jamerson was killed by something other than

gunfire, such as lightning or being struck by a car. The fact that the Chambers brothers returned

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fire is not, under Tennessee law, “an independent, intervening act or omission that [Brown] could

not reasonably have anticipated.” Id. at *10.

In various proposed amendments, Brown has parsed Tennessee law to argue that the

TCCA’s interpretation is incorrect. However, error in the application of state law is not

cognizable in a federal habeas proceeding. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t

is not the province of a federal habeas court to reexamine state-court determinations on state-law

questions.”); Pulley v. Harris, 465 U.S. 37, 41 (1984) (“A federal court may not issue the writ on

the basis of a perceived error of state law.”). This Court is bound by the TCCA’s interpretation

of Tennessee law in Brown II. Given that decision, the Court cannot find that counsel was

ineffective in failing to request Instruction 42.14 or that Brown suffered prejudice.

Claim 3 is without merit and is DENIED.

* * * *

Because every claim asserted by Brown is without merit, the Court DENIES the § 2254

Petition. The § 2254 Petition is DISMISSED WITH PREJUDICE. Judgment shall be entered

for Respondent.

III. APPEAL ISSUES

Twenty-eight U.S.C. § 2253(a) requires the district court to evaluate the appealability of

its decision denying a § 2254 petition and to issue a certificate of appealability (“COA”) “only if

the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2); see also Fed. R. App. P. 22(b). The COA must indicate the specific issue or issues

that satisfy the required showing. 28 U.S.C. §§ 2253(c)(2)-(3). No § 2254 petitioner may appeal

without this certificate. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1).

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A “substantial showing” is made when the movant 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) (internal quotation marks omitted).

Where a district court has rejected a constitutional claim on the merits, the showing

required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate

that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong. . . . When the district court denies a

habeas petition on procedural grounds without reaching the prisoner’s underlying

constitutional claim, a COA should issue when the prisoner shows, at least, that

jurists of reason would find it debatable whether the petition states a valid claim of

the denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.

Slack v. McDaniel, 529 U.S. 473, 484 (2000). “In short, a court should not grant a certificate

without some substantial reason to think that the denial of relief might be incorrect.” Moody v.

United States, 958 F.3d 485, 488 (6th Cir. 2020). “To put it simply, a claim does not merit a

certificate unless every independent reason to deny the claim is reasonably debatable.” Id.

In this case, there can be no question that the § 2254 Petition is meritless for the reasons

previously stated; therefore, the Court DENIES a COA.

Rule 24(a)(1) of the Federal Rules of Appellate Procedure provides that a party seeking

pauper status on appeal must first file a motion in the district court, along with a supporting

affidavit. However, if the district court certifies that an appeal would not be taken in good faith,

or otherwise denies leave to appeal in forma pauperis, the prisoner must file his motion to proceed

in forma pauperis in the appellate court. See Fed. R. App. P. 24(a) (4)-(5). In this case, for the

same reasons the Court denies a COA, the Court determines that any appeal would not be taken in

good faith. It is therefore CERTIFIED, pursuant to Federal Rule of Appellate Procedure 24(a),

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that any appeal in this matter would not be taken in good faith, and leave to appeal in forma

pauperis is DENIED.6

IT IS SO ORDERED, this 26th day of September, 2023.

s/ Sheryl H. Lipman

SHERYL H. LIPMAN

CHIEF UNITED STATES DISTRICT JUDGE

6 If Petitioner files a notice of appeal, he must pay the full $505 appellate filing fee or file

a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of

Appeals within thirty (30) days of entry of this Order. See Fed. R. App. P. 24(a)(5).

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