Richardson v. Genovese

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

)

ANTONIO RICHARDSON, )

)

Petitioner, )

)

v. ) Case No. 2:20-cv-02820-JTF-atc

)

KEVIN GENOVESE, )

)

Respondent. )

)

ORDER MODIFYING THE DOCKET, 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 (the “§ 2254 Petition”), filed by Petitioner Antonio Richardson, Tennessee

Department of Correction (“TDOC”) prisoner number 561686, an inmate incarcerated at the

Northwest Correctional Complex (“NWCX”) in Tiptonville, Tennessee, and Respondent’s

Answer to Petition for A Writ of Habeas Corpus (“Answer”).1 (ECF Nos. 1 & 8). For the reasons

stated below, the Court DENIES the § 2254 Petition.

1 See Tennessee Department of Correction, Felony Offender Information, Search -

Tennessee Felony Offender Information (tn.gov) (last accessed Aug. 29, 2024). The proper

respondent to a habeas petition is the petitioner’s custodian NWCX Warden Brandon Watwood.

Rumsfeld v. Padilla, 542 U.S. 426, 434-435 (2004). See Northwest Correctional Complex

(tn.gov) (last accessed Aug. 29, 2024). The Clerk shall record the respondent as NWCX Warden

Brandon Watwood and shall terminate all references to Kevin Genovese as the respondent. See

Fed. R. Civ. P. 25(d).

I. STATE COURT PROCEDURAL HISTORY

On August 26, 2014, a grand jury in Shelby County, Tennessee returned an indictment

charging Petitioner with the first-degree premeditated murder of Andrew Wooten, in violation of

Tenn. Code Ann. § 39-13-202. (ECF No. 7-1 at PageID 71.) On January 7, 2016, the jury

returned a guilty verdict on the first-degree murder charge. (Id. at PageID 104.) The court

sentenced Petitioner to life imprisonment. (Id. at PageID 107.) Kamilah Turner and Jennifer

Case represented Petitioner at trial. (See ECF No. 7-4 at PageID 317.)

On February 10, 2016, Petitioner filed a notice of appeal. (ECF No. 7-1 at PageID 109.)

Petitioner argued that: (1) the evidence was insufficient to sustain the first-degree murder

conviction because the killing resulted from a state of passion produced by adequate provocation

sufficient to lead a reasonable man to act in an irrational manner; and (2) the trial court erred in

allowing a gruesome photo of the victim, Wooten, to be entered into evidence. (ECF No. 7-8 at

PageID 753-62.) On February 13, 2017, the Tennessee Court of Criminal Appeals (“TCCA”)

affirmed the trial court. (ECF No. 7-10.) See State v. Richardson, No. W2016-00340-CCA-R3-

CD, 2017 WL 571520 (Tenn. Crim. App. Feb. 13, 2017). On April 13, 2017, the Tennessee

Supreme Court (“TSC”) denied the application for permission to appeal. (ECF No. 7-13.)

On September 1, 2017, Petitioner filed a pro se Petition for Post Conviction Relief in the

Shelby County Criminal Court. (ECF No. 7-14 at PageID 837-46.) Petitioner, through counsel

Jessica Gillentine, filed an amended petition which incorporated the pro se petition on June 6,

2018. (Id. at PageID 848-50.) The post-conviction court held an evidentiary hearing on January

24, 2019 and denied relief the same day. (See ECF Nos. 7-14 at PageID 853 & 7-16.)

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On February 25, 2019, Petitioner appealed. (Id. at PageID 856.) He presented three

issues for review: (1) whether his trial counsel performed unreasonably in failing to obtain or

secure funding for an independent expert to testify at trial about Petitioner’s mental health; (2)

whether the post-conviction court erred in denying him funding for an independent mental health

expert; and (3) whether Tenn. Sup. Ct. R. 13 violates the Tennessee and United States

Constitutions.2 (ECF No. 7-17 at PageID 1049, 1061.) Petitioner argued that the post-

conviction trial court erred by not granting relief for ineffective assistance of trial counsel for

failing to “pursue all reasonable avenues of defense relating to Petitioner’s mental illness”; “gather

and assess relevant records”; seeking an independent evaluation; and obtaining funding for an

independent expert to use diminished capacity to prove Petitioner did not have the requisite mens

rea for first-degree murder. (Id. at PageID 1055-58.)

On November 26, 2019, the TCCA affirmed. See Richardson v. State, No. W2019-00368-

CCA-R3-PC, 2019 WL 6341045 (Tenn. Crim. App. Nov. 26, 2019) (ECF No. 7-19). The TSC

denied permission to appeal on April 17, 2020. (See ECF No. 7-21.)

II. THE EVIDENCE

On direct appeal, the Tennessee Court of Criminal Appeals summarized the evidence

presented at trial as follows:

This case arises from an August 16, 2014 shooting in which Andrew Wooten, also

known as Woo, sustained multiple gunshot wounds while inside his car and died as

a result of his injuries. At the trial, Teresa Wooten, the victim’s sister, testified

that she last saw the victim two days before the shooting. She said that she had

never heard of the Defendant before the victim’s death but said her daughter and

2 Tenn. Sup. Ct. R. 13 addresses the right to counsel and procedure for appointment of

counsel including the appointment and compensation of experts. See Tenn. Sup. Ct. R.

13(a)(1)(A-B, E) & (d).

3

the Defendant were Facebook friends around the time of the shooting. Ms.

Wooten said that her daughter showed Ms. Wooten the Defendant’s Facebook page.

Ms. Wooten identified a photograph depicting the Defendant standing behind a

black SUV and said this photograph was posted on the Defendant’s Facebook page.

Ms. Wooten said that she called the police after viewing the photograph and showed

the photograph to police officers. Ms. Wooten stated that in 2012, the victim was

accused of shooting the Defendant, although she did not witness the shooting.

Memphis Police Lieutenant Derrick Williams testified that on July 18, 2012, he

investigated a shooting incident in which the Defendant was the victim.

Lieutenant Williams stated that he called the Defendant and asked what occurred

and that the Defendant reported a man identified as Woo “ran in his house on him.”

Lieutenant Williams said that the Defendant did not want to prosecute and that the

file was closed. He said that although he asked the Defendant to sign a refusal to

prosecute form, no form was signed.

On cross-examination, Lieutenant Williams testified that the telephone number he

used to contact the Defendant was provided to him by the officer who responded to

the crime scene. He agreed he had never spoken to the Defendant before the 2012

incident.

Taylor Newton testified that he worked at Thompson Court Apartments at the time

of the 2014 shooting and that he was the assistant property manager tasked with

security oversight. He said that security cameras were positioned on the main

office building, that the cameras recorded the shooting, and that the police obtained

a copy of the recording, which was received as an exhibit. On cross-examination,

Mr. Newton testified that he was unsure whether an employee of the apartment

complex continuously watched the security cameras.

Memphis Police Officer James Fort testified that he obtained the surveillance video

recording from the apartment complex. Although the recording was played for the

jury, it is not contained in the appellate record.

Laquinta Davis testified that she lived at the apartment complex on August 16,

2014. She said that at the time of the shooting, she was on her back porch watching

neighborhood children play football and that she saw a black SUV drive around the

area twice before stopping near her apartment. She said that she heard gunfire and

that the Defendant got out of the driver’s door of the SUV, ran toward another car,

and continued shooting to “finish off” the victim. She said that the gun was a semi-

automatic handgun. She said that she heard a two-second pause during the

shooting, which she described as the time it took for the Defendant to “get close

enough ... and then finish” shooting at the victim. She said that she heard about

nine gunshots and that the Defendant returned to his SUV and drove away. She

said that she called 9–1–1, that the dispatcher asked her to determine whether the

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victim was breathing, that she walked to the car, and that the victim was not

breathing. She saw bullet holes in the victim’s back and said the victim was

“slumped over” to the side.

Ms. Davis identified the surveillance recording from the apartment complex and

said that the recording accurately reflected her testimony. She said that although

several people walked toward the victim’s car after the shooting, nobody got inside

the car. She said that she did not see any weapons in the victim’s hands or inside

the car and that she did not see anything to indicate shots were being fired from the

victim’s car. She said that she had never seen the Defendant before the shooting

and that she did not know the victim.

On cross-examination, Ms. Davis testified that she did not know any of the people

who walked toward the victim’s car after the shooting, that she did not know

Charles Dowdy, and that she moved to the apartment complex about one month

before the shooting. She agreed that after the people walked toward the victim’s

car, she turned away from the victim’s car and toward the main office while she

spoke to the 9–1–1 dispatcher.

Laquilshay Brown testified that she had lived at the apartment complex about seven

months at the time of the shooting. She said that on the day of the shooting, she

and a friend were returning to her apartment. She said that from inside her friend’s

car, she heard gunshots and saw the Defendant drive past her friend’s car while

shooting a gun at someone. She said the Defendant stopped shooting, got out of

his black SUV, allowed her friend to drive past the area, walked toward the victim,

and continued shooting. She said that she was about ten feet from the Defendant

when he allowed her friend to drive away from the area. She said the victim was

inside a car when the shooting began and was slumped over when her friend drove

away.

Charles Dowdy testified that he lived at the apartment complex at the time of the

shooting, that he knew the victim, and that the victim’s nickname was Woo. Mr.

Dowdy said the victim came to his apartment around 2:00 or 3:00 p.m. before the

shooting and stayed about twenty minutes. Mr. Dowdy admitted the victim bought

one pound of marijuana for $1,000 and left. After he saw the victim drive away in

a gold or greenish Mazda, Mr. Dowdy returned to his apartment. Mr. Dowdy said

that he stepped outside his apartment again and heard gunshots. He said that

although he did not see anyone shooting a gun, he saw a black SUV driving away.

He said that he did not see the driver but that he knew the SUV belonged to the

Defendant because it had been parked across the street from Mr. Dowdy’s

apartment previously.

Mr. Dowdy testified that he reviewed the surveillance recording and that he saw

the Defendant’s SUV leaving the crime scene. He said that in the recording,

5

someone got out of the black SUV and walked toward the bushes. Mr. Dowdy

said the person would have been able to see vehicles leaving the parking lot from

the bushes.

Mr. Dowdy testified that the victim did not have a weapon when the victim came

to his apartment. Mr. Dowdy admitted that he had been convicted of selling

marijuana and that he was serving a sentence on probation at the time of the trial.

He agreed he provided a police statement before receiving probation and that the

prosecutor in his case had not promised leniency in exchange for his testimony in

the present case.

On cross-examination, Mr. Dowdy testified that he had previous drug-related

convictions and a conviction for altering, falsifying, or forging an automobile title

or license plate. He said the victim did not live where the shooting occurred,

although he thought the victim lived at the apartment complex. He said the drug

transaction occurred in the victim’s car. He denied selling the victim “pills” or

cocaine and placing or removing anything from the victim’s pockets. Mr. Dowdy

said that after the victim drove away, he heard gunshots, that he ran, that he heard

additional gunshots, that he got inside his car, that he attempted to drive away, and

that he saw the victim’s wrecked car. Mr. Dowdy said that he stopped his car, got

out, and walked to the victim’s car. Mr. Dowdy said that he yelled the victim’s

name, that he returned to his car, that he drove away, and that he returned to his

apartment.

Shelva Stafford, Shelby County Clerk's Office records custodian, testified that the

Defendant was the registered owner of a black Pontiac Aztec. She identified the

license plate and VIN numbers. She agreed the last three digits of the license plate

number matched the last three digits of the license plate visible in the photograph

identified by Ms. Wooten.

Memphis Police Officer Brandon Westrich testified that he responded to the crime

scene and that the deceased victim was slumped inside the victim’s car with visible

gunshot wounds. He did not recall whether the doors on the victim’s car were

open but said nobody was inside the car. He secured the scene and said he looked

for cartridge casings and other evidence in the area. He did not see any weapons

inside the car but saw marijuana on the front passenger floorboard. On cross-

examination, Officer Westrich stated that he saw bystanders when he arrived at the

crime scene but that nobody was “directly in the crime scene.”

Chief Medical Examiner Karen Chancellor, an expert in forensic pathology,

testified that the victim suffered four gunshot wounds to the left shoulder, back, and

head. She said that one of the bullets fractured the left clavicle, that a second bullet

damaged the left lung and heart, causing internal bleeding, and that a third bullet

damaged the left lung, liver, and spleen. A fourth bullet struck the victim’s skull,

6

causing a fracture, but did not injure the brain. She concluded that either the

second or third bullets could have caused the victim’s death because of the damage

to the victim’s organs. The victim’s toxicology report showed the presence of

marijuana. She concluded that the cause of death was multiple gunshot wounds.

On cross-examination, Dr. Chancellor testified that at the time of the autopsy, a bag

containing a green leafy substance, a bottle containing pills, one bag containing a

white powder, one bag of white pills, a single $100 bill, two $10 bills, seventeen

$1 bills, twenty-six $20 bills, and five $5 bills were collected from the victim’s

body. She did not perform any analyses on the white pow[d]er.

Memphis Police Officer Jeffrey Garey testified that he collected evidence at the

scene. He recovered seventeen FC nine-millimeter cartridge casings.

Photographs of the victim’s car showed seven “circular defects” on the rear driver’s

side, circular defects on the front driver’s door and front fender, broken and

shattered front driver’s and passenger-side windows, and three circular defects in

the front driver’s seat. A single photograph showed the victim inside the car

leaning toward the center console and front passenger seat and with three circular

defects in his upper left shoulder and back. Officer Garey said that one cartridge

casing was found on the hood of the victim’s car and that three casings were found

in “fairly close proximity” to the car. Officer Garey said no weapons or

ammunition were found inside the victim’s car.

Tipton County Sheriff's Detective Brandon Matlock testified that on September 17,

2014, he obtained a search warrant for the black Pontiac Aztec matching the license

plate and VIN numbers previously identified. Detective Matlock said that the

SUV was registered to the Defendant. Detective Matlock and Memphis Police

Sergeant Gaylor and another officer searched the SUV. A photograph of the

SUV’s interior showed an identification badge reflecting the Defendant’s name and

photograph. Detective Matlock said other items were seized from the SUV,

including a grey hooded sweatshirt and red and black work gloves.

Memphis Police Officer Michael Coburn testified that he processed the victim’s

car. He said that the circular defects were possible bullet holes and that nine

circular defects were found on the rear of the driver’s seat and on the front

passenger seat. He said that twelve circular defects were found on the outside of

the car. He said that bullet projectiles were found on the left rear floorboard and

in some clothing after it was removed from the back seat. He identified two

projectile fragments found on the right rear floorboard and inside the front right

door handle. He identified a baseball cap found inside the car with two circular

defects and said broken window glass was found inside the car. He said no

cartridge casings, unfired ammunition, or weapons were found inside the car. He

attempted to obtain latent fingerprints from the car, but none were found.

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Officer Coburn testified that he processed the Defendant’s Pontiac Aztec, that no

weapons or cartridge casings were found inside the SUV, and that no circular

defects were found inside or outside the SUV. He did not attempt to obtain latent

fingerprints.

On cross-examination, Officer Coburn testified that the green leafy substance found

inside the victim’s car was later identified as marijuana, which weighed 455.8

grams. He agreed he obtained one fingerprint on the bag containing the marijuana

and said the fingerprint was forwarded to the latent fingerprint examiners. On

redirect examination, he agreed that the multiple circular defects found on the

victim’s car were possible bullet holes and that he found no similar markings on

the Defendant’s SUV.

Tipton County Sheriff’s Deputy Jeffrey Thompson, Sr., testified that on September

16, 2014, the United States Marshals Service apprehended the Defendant in

Covington.

Memphis Police Sergeant James Sewell testified that he responded to the scene of

the shooting and that the victim had clear plastic sandwich bags in his pants pocket.

He said the bags were commonly used to sell drugs. He agreed he also saw an

unmarked pill bottle containing several unidentified white pills. He did not see

any weapons or ammunition inside the car or on the victim’s body.

Brenda Lee, apartment manager and records custodian for Thompson Court

Apartments, testified on behalf of the defense that the Defendant and Anthony

Williams leased an apartment on January 17, 2014. She said Mr. Williams lived

in the apartment on August 16, 2014.

Dominique Harris, the victim’s niece and the Defendant’s cousin, testified that in

July 2012, the Defendant and the victim were in an altercation. She said that

someone “broke up” the fight inside an apartment at Hillview Village, that the

victim ran upstairs, that the victim obtained a gun, and that the victim returned with

a gun and shot the Defendant. She recalled that multiple people, including

children, were present and said that everyone “scattered” after the victim obtained

the gun. She said the Defendant also ran because everyone knew the victim went

inside to obtain a gun. She said that she and the Defendant ran downstairs, that

the Defendant suffered a gunshot wound to the leg, and that the Defendant escaped

through a bedroom window. She said she heard the victim say, “Man, you think

it’s a game,” just before the gun fired twice. On cross-examination, Ms. Harris

stated that she and the Defendant never spoke about the shooting and that she did

not know the Defendant refused to prosecute the victim.

The Defendant testified that in 2012, the victim shot him. The Defendant

explained,

8

[T]here was a stabbing that happened between Ms. Helen and my sister. I

came back from the basketball court and I saw that, so I knew [the victim]

from the park and I told him about this, I told him ... what had happened. I

came around and I asked him what happened and what was going on and he

stowed off on me and hit me and we got into an altercation.

The Defendant said that after the fight, the victim ran upstairs, obtained a gun,

found the Defendant, and shot him in the leg. The Defendant said that he held up

his hands and asked the victim not to shoot him. The Defendant said that the

victim ran away after the shooting, that “Helen’s brother” was “coming back ... to

try to finish it off,” and that he and Ms. Harris escaped through a window. He said

that he obtained treatment at the hospital, that he only spoke to the police at the

scene before he left in an ambulance, and that he told the officer the victim shot

him.

The Defendant testified that he lived at the apartment complex where the shooting

in the present case occurred and that he shot the victim because he feared for his

life. The Defendant said that on the day of the shooting, he returned home after

driving his sister to her home and saw the victim and Mr. Dowdy standing near the

Defendant’s apartment. The Defendant recalled an unrelated confrontation with

Mr. Dowdy the day before the shooting and said the incident related to his and Mr.

Dowdy’s nieces. The Defendant said he attempted to speak to Mr. Dowdy and Mr.

Dowdy’s father to persuade Mr. Dowdy’s father to calm Mr. Dowdy. The

Defendant said that when he went to talk to Mr. Dowdy’s father, “they [were]

already loading up, like they was fixin [sic] to get ready to come down there and

shoot up my apartment.” The Defendant said,

So they saw my face and they say, they had knew me, so I guess they were ...

squashing it and stuff ... for whatever reason like that. But, you know how

it is, [Mr. Dowdy], he will say something and he got to do something else,

like get somebody to try to take you out, or something like that.

The Defendant said that he thought the matter was resolved but that when he saw

Mr. Dowdy and the victim the next day standing across the street from the

Defendant’s apartment, he was unsure what was happening. The Defendant said

that he drove his SUV around the area, parked, got out, and approached Mr. Dowdy

and the victim. The Defendant said that he asked the men what was happening

and that the victim said, “If you don’t get away from around here[,] I’m going to

blow [your] a— off.” The Defendant said he returned to his SUV, thinking about

the victim’s shooting him previously.

The Defendant testified that he had owned the gun he used to shoot the victim since

the victim shot him two years previously. He said that while he was sitting in his

9

SUV, he thought the men were going to shoot at him and that he needed to protect

himself. He said that he backed up his SUV in the event the men attempted to

shoot at him first, that he got out, and that he began shooting first because he

thought the victim was going to kill him. He said he did not drive away because

he lived at the apartment complex and because he was shot the last time he ran from

the victim. He said he did not call the police immediately after the shooting and

recalled feeling “a rage.” He said he did not go to his apartment because he feared

“they” would hurt him.

On cross-examination, the Defendant testified that he did not speak to Lieutenant

Williams about the victim’s shooting him in 2012. He said that he was upset about

the victim’s shooting him but that he “let it go.” He denied wanting “street

justice.” The Defendant said that Mr. Dowdy did not live in the apartment Mr.

Dowdy identified and that Mr. Dowdy did not live across the street from him. The

Defendant agreed that he parked his SUV behind a bush on the day of the shooting

but denied he backed up to ensure the victim could not see him coming around the

building. He said he was not afraid of the victim until the victim threatened him.

The Defendant agreed that he saw the victim drive around the corner, that the

Defendant began firing his gun, and that no gunshots were fired from the victim’s

car. He did not know whether the victim had a gun but said the victim had

threatened him and was driving toward him. He did not know how many shots he

fired at the victim’s car and said he was “in a rage.” He agreed he ran to his SUV

when the shooting ended. He did not know why he did not call the police after the

shooting and denied knowing the police were looking for him.

The Defendant testified that he was not “waiting to get [his] chance” because he

had seen the victim numerous times since the 2012 shooting. He said he used a

nine-millimeter handgun to shoot the victim and said he sold it to the original owner

afterward. He agreed he denied shooting the victim until he saw the surveillance

recording from the apartment complex. He said later, though, that he did not know

he had shot the victim until he saw the recording and that he was shocked.

On redirect examination, the Defendant testified that he had to “get” the victim

before the victim “got” him. He said that he needed to shoot the victim before the

victim hurt him again. He said that he took seriously the victim's threat to “blow

[the Defendant's] a— off.”

Richardson, 2017 WL 571520, at *1–6.

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III. LEGAL STANDARD

Federal courts have authority to issue habeas corpus relief for persons in state custody

under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). A federal court may grant habeas relief to a state prisoner “only on the ground that

he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

§ 2254(a).

A. Exhaustion & Procedural Default

For a claim to be exhausted, “[i]t is not enough that all the facts necessary to support the

federal claim were before the state courts, or that a somewhat similar state-law claim was made.”

Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (internal citations omitted). Nor is it

enough to make a general appeal to a broad constitutional guarantee. Gray v. Netherland, 518

U.S. 152, 163 (1996). A federal court may not grant a writ of habeas corpus on behalf of a state

prisoner unless, with certain exceptions, the prisoner has exhausted available state remedies by

presenting the same claim sought to be redressed in a federal habeas court to the state courts. 28

U.S.C. § 2254(b) & (c); see Cullen v. Pinholster, 563 U.S. 170, 181 (2011). The petitioner must

“fairly present” each claim to all levels of state court review, up to and including the state’s highest

court on discretionary review, Baldwin v. Reese, 541 U.S. 27, 29 (2004), except where the state

has explicitly disavowed state supreme court review as an available state remedy, O’Sullivan v.

Boerckel, 526 U.S. 838, 847-48 (1999). Tennessee Supreme Court Rule 39, effective June 28,

2001, eliminated the need to seek review in the Tennessee Supreme Court to “be deemed to have

exhausted all available state remedies.” Adams v. Holland, 330 F.3d 398, 402 (6th Cir. 2003);

see Smith v. Morgan, 371 F. App’x 575, 579 (6th Cir. 2010) (“Adams not only requires the federal

11

courts to ensure that the state courts have the first opportunity to review and evaluate legal claims

. . . but also mandates that the federal courts respect the duly-promulgated rule of the Tennessee

Supreme Court that recognizes the law and policy-making function of that court and the court’s

desire not to be entangled in the business of simple error correction”).

The procedural default doctrine is ancillary to the exhaustion requirement. See Edwards

v. Carpenter, 529 U.S. 446, 452-53 (2000) (noting the interplay between the exhaustion rule and

the procedural default doctrine). If the state court decides a claim on an independent and adequate

state ground, such as a procedural rule prohibiting the state court from reaching the merits of the

constitutional claim, a petitioner ordinarily is barred from seeking federal habeas review.

Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977); see Walker v. Martin, 562 U.S. 307, 315 (2011)

(“A federal habeas court will not review a claim rejected by a state court if the decision of the state

court rests on a state law ground that is independent of the federal question and adequate to support

the judgment”) (internal quotation marks and citation omitted).3 In general, however, “we may

only treat a state court order as enforcing the procedural default rule when it unambiguously relied

on that rule.” Peoples v. Lafler, 734 F.3d 503, 512 (6th Cir. 2013).

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

3 The state-law ground may be a substantive rule dispositive of the case, or a procedural

barrier to adjudication of the claim on the merits. Walker, 562 U.S. at 315. A state rule is an

“adequate” procedural ground if it is “firmly established and regularly followed.” Id. at 316

(quoting Beard v. Kindler, 558 U.S. 53, 60-61 (2009)). “A discretionary state procedural rule . .

. can serve as an adequate ground to bar federal habeas review . . . even if the appropriate exercise

of discretion may permit consideration of a federal claim in some cases but not others.” Id.

(quoting Kindler, 558 U.S. at 54.) (internal citations & quotation marks omitted).

12

exhausted, but procedurally barred. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); see

Robertson v. Fender, No. 20-4215, 2021 WL 1978359, at *2 (6th Cir. Apr. 28, 2021).4

Under either scenario, a petitioner must show cause to excuse his failure to present the

claim and actual prejudice stemming from the constitutional violation or, alternatively, that a

failure to review the claim will result in a fundamental miscarriage of justice. Schlup v. Delo, 513

U.S. 298, 320-21 (1995); Coleman, 501 U.S. at 750. The latter showing requires a petitioner to

establish that a constitutional error has probably resulted in the conviction of a person who is

actually innocent of the crime. Schlup, 513 U.S. at 321; see House v. Bell, 547 U.S. 518, 536-39

(2006) (restating the ways to overcome procedural default and further explaining the actual

innocence exception).

B. Merits Review

Where a claim has been adjudicated on the merits in state court, the writ is only granted 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

[AEDPA] standard,” which “demands that state-court decisions be given the benefit of the doubt.”

4 To avoid procedural default, federal law requires a federal habeas petitioner in Tennessee

to present his federal claims to the Tennessee Court of Criminal Appeals. Covington v. Mills, 110

F. App’x 663, 665 (6th Cir. 2004).

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Pinholster, 563 U.S at 181 (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011), and Woodford

v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). Review under § 2254(d)(1) is limited to the

record that was before the state court that adjudicated the claim on the merits. Pinholster, 563

U.S. at 181-82, 185.

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, 41213 (2000).5 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.” Id. at 413. The state

court’s application of clearly established federal law must be “objectively unreasonable” for the

writ to issue. Id. at 409. The writ may not issue merely because 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.” Harrington, 562 U.S. at 103.

5 The “contrary to” standard does not require citation of Supreme Court cases “so long as

neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer,

537 U.S. 3, 8 (2002) (per curiam).

14

As for challenges under §2254(d)(2), “when 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” merely because the federal habeas court would have reached a different

conclusion. Wood v. Allen, 558 U.S. 290, 301 (2010); see also Rice v. Collins, 546 U.S. 333, 341-

42 (2006) (“Reasonable minds reviewing the record might disagree” about the factual finding in

question, “but on habeas review that does not suffice to supersede the trial court’s . . .

determination.”).6 The Supreme Court has described this standard as “demanding but not

insatiable” and has emphasized that “deference does not by definition preclude relief.” Miller-El

v. Dretke, 545 U.S. 231, 240 (2005) (internal quotation marks and alteration omitted).

IV. RICHARDSON’S § 2254 PETITION

On November 12, 2020, Richardson filed his § 2254 Petition. (ECF No. 1.) He raises the

following issues:

1. Whether the evidence was sufficient to convict him (ECF No. 1 at PageID

7-9);

6 In Wood, the Supreme Court granted certiorari to resolve whether, to satisfy § 2254(d)(2),

“a petitioner must establish only that the state-court factual determination on which the decision

was based was “‘unreasonable,’” or whether § 2254(e)(1) additionally requires a petitioner to rebut

a presumption that the determination was correct with clear and convincing evidence.” Wood,

558 U.S. at 299. The Court ultimately found it unnecessary to reach that issue, and left it open

“for another day.” Id. at 300-01, 303 (citing Rice, 546 U.S. at 339, in which the Court recognized

that it is unsettled whether there are some factual disputes to which § 2254(e)(1) is inapplicable).

In Burt, 571 U.S. at 18, the Supreme Court applied § 2254(e)(1)’s “clear and convincing” standard

but cautioned that “[w]e have not defined the precise relationship between § 2254(d)(2) and §

2254(e)(1), and we need not do so here.”

15

2. Whether the trial court erred by admitting a photograph of the victim at the

crime scene (id. at PageID 10-11);

3. Whether trial counsel was ineffective for failing to fully investigate,

develop, and pursue an insanity defense (“IATC”) (id. at PageID 12-13);

4. Whether trial counsel was ineffective for failing to interview homicide

detective Fausto Frias and call him as a witness (id. at PageID 14-15);

5. Whether trial counsel was ineffective for failing to object to “several

witnesses testimonies, for various reasons, detrimental to his defense, which

were not listed on the petitioner’s indictment” (id. at PageID 16-18);

6. Whether trial counsel was ineffective for failing to move for a mistrial

because evidence produced at trial of the crime scene was admitted although

the crime scene had been contaminated (id. at PageID 19-20); and

7. Whether trial counsel was ineffective for failing to file a motion to dismiss

the indictment where the grand jury foreman’s signature had been forged

and the indictment was invalid and void because of other grand jury

procedures (id. at PageID 21-23).

The Court issued an order on December 7, 2020, directing the Warden to file the state-court record

and a response. (ECF No. 6.) The Warden filed the state-court record on January 14, 2021 (ECF

No. 7), and his Answer on January 21, 2021. (ECF No. 8.) Petitioner did not file a reply.

V. ANALYSIS OF PETITIONER’S CLAIMS

Respondent argues that the § 2254 Petition should be denied with prejudice because many

of the claims are procedurally defaulted and lack merit given that “the one [] properly exhausted

claim (the sufficiency of the evidence claim) provides no relief because Petitioner’s pleadings do

not satisfy the stringent requirements of 28 U.S.C. § 2254(d).” (See ECF No. 8 at PageID 1132,

1141-45.)

16

A. Sufficiency of the Evidence

Petitioner asserts that the evidence was insufficient to convict him of first-degree murder

because premeditation was not proven at trial. (ECF No. 1 at PageID 7.) He cites Tenn. Code

Ann. § 39-13-202(a)(1)(D) to argue that his mental state must be “carefully considered in order to

determine whether [he] was sufficiently free from excitement and passion as to be capable of

premeditation.” (Id.) Petitioner argues that the trial court, as the thirteenth juror, conceded that

there was “ample proof that shows that he was in a heat of passion.” (Id.)

Petitioner raised this claim on direct appeal. The TCCA’s consideration of this claim

reads in pertinent part that:

The Defendant contends that the evidence is insufficient to support his conviction.

He argues that the State failed to establish that he acted with premeditation, that the

evidence reflects he acted pursuant to adequate provocation based upon the

previous altercation with the victim, and that his conviction should be reduced to

voluntary manslaughter. The State responds that the evidence sufficiently showed

that the Defendant acted with premeditation and that he did not act pursuant to

adequate provocation. We agree with the State.

In determining the sufficiency of the evidence, the standard of review is “whether,

after viewing the evidence 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see State v.

Vasques, 221 S.W.3d 514, 521 (Tenn. 2007). The State is “afforded the strongest

legitimate view of the evidence and all reasonable inferences” from that evidence.

Vasques, 221 S.W.3d at 521. The appellate courts do not “reweigh or reevaluate

the evidence,” and questions regarding “the credibility of witnesses [and] the

weight and value to be given the evidence ... are resolved by the trier of fact.” State

v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see State v. Sheffield, 676 S.W.2d

542, 547 (Tenn. 1984).

“A crime may be established by direct evidence, circumstantial evidence, or a

combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see

State v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review ‘is

the same whether the conviction is based upon direct or circumstantial evidence.’”

State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279

S.W.3d 265, 275 (Tenn. 2009)).

17

First degree murder is the unlawful, intentional, and premeditated killing of

another. T.C.A. §§ 39–13–201 (2014), 39–13–202(a)(1) (2014). In the context

of first degree murder, intent is shown if the defendant has the conscious objective

or desire to cause the victim’s death. State v. Page, 81 S.W.3d 781, 790–91 (Tenn.

Crim. App. 2002); see T.C.A. § 39–11–106(a)(18) (2010) (amended 2011, 2014)

(defining intentional as the conscious objective or desire to engage in the conduct

or cause the result”). “It is not necessary that the purpose to kill preexist in the

mind of the accused for any definite period of time.” T.C.A. § 39–13–202(d)

(2014). “The element of premeditation is a question for the jury which may be

established by proof of the circumstances surrounding the killing.” State v. Young,

196 S.W.3d 85, 108 (Tenn. 2006). As a result, the jury “may infer premeditation

from the manner and circumstances of the killing.” State v. Jackson, 173 S.W.3d

401, 408 (Tenn. 2005); see State v. Vaughn, 279 S.W.3d 584, 595 (Tenn. Crim.

App. 2008). Our supreme court has provided a list of factors which “tend to

support the existence” of premeditation and deliberation. See Bland, 958 S.W.2d

at 660. The list includes the use of a deadly weapon upon an unarmed victim, the

particular cruelty of the killing, declarations by the defendant of an intent to kill,

evidence of procurement of a weapon, preparations before the killing for

concealment of the crime, and calmness immediately after the killing. Id. (citing

State v. Brown, 836 S.W.2d 530, 541–42 (Tenn. 1992); State v. West, 844 S.W.2d

144, 148 (Tenn. 1997)).

We conclude that the evidence is sufficient to support the Defendant’s conviction.

The evidence viewed in the light most favorable to the State reflects that on the day

of the shooting, the Defendant arrived at the apartment complex in his black SUV,

drove around the area twice before parking, that he got out of his SUV, that he

grabbed a nine-millimeter handgun from inside his SUV, that he began shooting at

the victim’s car when it drove near the Defendant, that he walked toward the

victim’s car, that he stopped shooting to allow a car to drive past the area, and that

he continued shooting until he had fired his handgun seventeen times. The victim

was driving his car when the shooting began, and he was struck four times. The

medical examiner testified that the cause of death was gunshot wounds.

Photographs taken at the crime scene show the victim was shot three times in the

rear shoulder and back areas. After the shooting, the Defendant ran to his SUV

and drove away. We note that the Defendant fled the county and was apprehended

approximately one month after the shooting. The victim was unarmed, and the

Defendant admitted no shots were fired from the victim’s car. The Defendant also

admitted parking his SUV behind a bush and to selling the handgun used during the

shooting to the original owner. Based upon this evidence, a reasonable jury could

conclude beyond a reasonable doubt that the Defendant committed first degree

premeditated murder. The jury’s verdict reflects that it rejected the Defendant’s

testimony that he acted in an effort to defend himself or “in a rage” and any conflicts

18

in the evidence and witness credibility were resolved by the jury in favor of the

State. The evidence is sufficient to support the conviction.

Relative to the Defendant’s argument that the evidence supports a finding that he

acted based upon a state of passion produced by adequate provocation because he

feared the victim due to the 2012 incident in which the victim shot the Defendant

in the leg and because the victim threatened him on the day of the shooting, no

evidence reflects that the victim’s conduct on the day of the shooting in this case

produced adequate provocation for the Defendant to shoot the victim seventeen

times. The victim was driving his car without regard for the Defendant, was

unarmed, and did not attempt to injure or harm the Defendant. Likewise, no

evidence shows that the victim created an imminent danger of death or serious

bodily injury justifying the Defendant’s shooting at the victim. Any confrontation

between the victim and the Defendant ended when the Defendant returned to his

SUV after speaking with Mr. Dowdy and the victim. We note that the trial court’s

final jury instructions reflect the court provided the jury with a voluntary

manslaughter instruction as a lesser included offense of first degree murder and

with a self-defense instruction, which the jury by its verdict rejected. The

Defendant is not entitled to relief on this basis.

Richardson, 2017 WL 571520, at *6-7.

In Jackson v. Virginia, 443 U.S. 307, 324 (1979), the Supreme Court held that, “in a

challenge to a state criminal conviction brought under 28 U.S.C. § 2254 . . . the applicant is entitled

to habeas corpus relief” if the Court finds, that “upon the record evidence adduced at the trial no

rational trier of fact could have found proof of guilt beyond a reasonable doubt.” A federal habeas

court may not intrude on the trier of fact’s role “to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id. at 319.

Sufficiency of the evidence claims “face a high bar in federal habeas proceedings because they are

subject to two layers of judicial deference.” Coleman v. Johnson, 566 U.S. 650, 651 (2012).

First, on direct appeal, the reviewing court defers to the trier of fact, and second, on habeas review,

“a federal court may not overturn a state court decision rejecting a sufficiency of the evidence

challenge simply because the federal court disagrees with the state court.” Id. (internal quotation

19

marks omitted). The federal habeas court may overturn the state court’s rejection of such a claim,

only if the state court’s decision was “objectively unreasonable.” Id. (citation omitted).

Respondent cites the established standard for review of a sufficiency of evidence claim in

Jackson and the Supreme Court’s determination in Coleman, that there is a “high bar” and “two

layers of judicial deference” to obtain habeas relief based on sufficiency of the evidence. (ECF

No. 8 at PageID 1141.) Respondent argues that the claim fails because the TCCA does not

unreasonably apply Jackson, and the record evidence of Petitioner parking his car behind a bush

to conceal it, laying-in-wait for Wooten, getting out and shooting at Wooten’s car when it passed,

and pausing for another car to pass before continuing shooting could “undoubtedly” lead a rational

juror to conclude that Petitioner acted with premeditation. (Id. at PageID 1143.) Respondent

asserts that Petitioner’s contention that he was not sufficiently free from excitement and passion

asks the Court to substitute its judgment for that of the jury. (Id. at PageID 1143-44.)

Respondent contends that Petitioner’s reference to the trial court’s statement about ample

proof of heat of passion is taken out-of-context because the statement was made in a jury-out

hearing for purposes of deciding which jury instructions would be allowed. (See ECF Nos. 7-6

at PageID 700-701 & 8 at PageID 1144.) Respondent argues that Petitioner did not make this

argument on direct appeal, meaning that it is waived. (Id.)

On direct appeal, the TCCA correctly cited Jackson as the applicable Supreme Court

precedent. See Richardson, 2017 WL 571520, at *6. Next, the TCCA addressed the type of

evidence needed to establish the crime and identified the elements of first-degree murder under

Tennessee law, including a list of factors supporting a finding of premeditation. Id. The TCCA

then summarized the relevant evidence in the light most favorable to the State, noting that: (1)

20

Petitioner fled the county and was not apprehended until a month later; (2) Wooten was unarmed;

(3) Petitioner admitted that no shots were fired from Wooten’s car; (4) Petitioner parked his SUV

behind a bush; and (5) Petitioner sold the handgun back to its original owner. Id. at *7. The

TCCA emphasized that “the jury’s verdict reflects that it rejected Defendant’s testimony that he

acted in an effort to defend himself or ‘in a rage.’” Id. The TCCA concluded that there was no

evidence showing that Wooten created an imminent danger for Petitioner because Wooten “was

driving his car without regard for [Petitioner], was unarmed, and did not attempt to injure or harm”

Petitioner. Id. The TCCA further noted that the jury rejected voluntary manslaughter as a lesser

included offense and the self-defense instruction. Id.

Based on this Court’s review of the trial transcripts, the TCCA, giving deference to the jury

as the trier of fact, reasonably concluded that the State presented sufficient evidence to support

Petitioner’s conviction. The testimony and other evidence presented at trial permitted a rational

trier of fact to find Petitioner guilty of first-degree premeditated murder. Giving the two layers

of deference due in analyzing this claim in habeas, the Court finds that the TCCA’s decision was

not contrary to or an unreasonable application of Jackson and that the TCCA did not base its

decision on an unreasonable determination of the facts given the evidence. Petitioner’s

sufficiency of the evidence challenge is DENIED.

B. The Photograph

Petitioner asserts that the trial court erred by admitting a photograph (Trial Exhibit 49) of

the deceased victim at the crime scene. (ECF No. 1 at PageID 10.) He contends that admission

of the photograph violated his Sixth and Fourteenth Amendment rights to a fair trial and due

21

process because the photograph was gruesome and the prejudicial effect it had on the jury

outweighed its probative value. (Id.)

On direct appeal, Petitioner argued, based on Tennessee Rules of Evidence 401, 402, and

403 and Tennessee case law, that the photograph was cumulative and not relevant to any issue

contested at trial. (ECF No. 7-8 at PageID 758-62.) The TCCA evaluated Petitioner’s claim on

that basis and denied relief without any consideration of a federal constitutional issue. See

Richardson, 2017 WL 571520, at *7-9. The TCCA concluded:

The photograph clearly showed the victim’s location inside the car after the

shooting, and although the victim might have received treatment by first responders

while sitting in the driver’s seat of the car, no evidence reflects that the victim was

removed from the car before the photograph was taken. Ms. Davis testified that

she determined that the victim was not breathing when she was talking to the 9–1–

1 dispatcher, and Officer Westrich testified that the victim was deceased when he

arrived at the scene. The photograph assisted the jury in determining whether the

Defendant acted with premeditation or whether he acted pursuant to adequate

provocation as he contended during his trial testimony. The photograph reflects

that the victim was shot three times in the rear shoulder and upper back areas while

inside his car and does not reflect the presence of a weapon, which supported

witness testimony. Likewise, the photograph was not overly gruesome, although

some blood was visible, and the probative value of the photograph was not

substantially outweighed by the danger of unfair prejudice. The Defendant is not

entitled to relief on this basis.

Id. at *9.

Respondent argues that Petitioner exhausted his claim under Tennessee law and has not

fairly presented his federal habeas claim about the admission of the photograph because, on direct

appeal, Petitioner did not cite any clearly established federal law, cite state law that included a

federal constitutional analysis, or phrase his claim in terms of constitutional law. (ECF No. 8 at

PageID 1145-46.) Respondent asserts that the claim is procedurally defaulted and that Petitioner

22

has not argued cause and prejudice or that the Court’s failure to consider the claim would result in

a miscarriage of justice. (Id. at PageID 1146.)

Claims that the state courts misapplied Tennessee evidentiary rules during the trial are not

cognizable in a federal habeas petition. See 28 U.S.C. § 2254(a) (a federal court may grant habeas

relief to a state prisoner “only on the ground that he is in custody in violation of the Constitution

or laws or treaties of the United States”); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)

(“it is not the province of a federal habeas court to reexamine state-court determinations on state-

law questions”); Wilson v. Parker, 515 F.3d 682, 705 (6th Cir. 2008) (“[a] federal court cannot

issue a writ of habeas corpus ‘on the basis of a perceived error of state law’” (quoting Pulley v.

Harris, 465 U.S. 37, 41 (1984)).

Petitioner’s brief on direct appeal and the TCCA’s opinion relied entirely on Tennessee

evidentiary rules and case law concerning the relevance of victim and crime scene photographs.

Neither Petitioner nor the TCCA addressed this purported trial error as a violation of Petitioner’s

rights under the United States Constitution. Petitioner did not fairly present the photograph claim

as a constitutional claim and has failed to exhaust his federal constitutional claim in state court.

Because no further avenue exists for exhausting the claim as a federal constitutional claim, it is

barred by procedural default. Petitioner has presented no argument to overcome the procedural

default. The photograph claim is DENIED.

C. Ineffective Assistance of Trial Counsel

Richardson’s IATC claims are controlled by the standard provided 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

23

performance, a person challenging a conviction “must show that counsel’s representation fell

below an objective standard of reasonableness.” Id. at 688. A court considering a claim of

ineffective assistance 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.” Richter, 562 U.S. at 105

(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 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

24

the burden on the defendant, not the State, to show a ‘reasonable probability’ that the result would

have been different”).

In Martinez v. Ryan, 566 U.S. 1, 17 (2012), the Supreme Court held that “a procedural

default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance

at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that

proceeding was ineffective.” A “substantial” claim is one that has some merit. Id. at 14.

Subsequently, in Trevino v. Thaler, 569 U.S. 413, 429 (2013), the Supreme Court extended its

holding in Martinez to states in which a “state procedural framework, by reason of its design and

operation, makes it highly unlikely in a typical case that a defendant will have a meaningful

opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal . . ..” The

Sixth Circuit in Sutton v. Carpenter, 745 F.3d 787, 790 (6th Cir. 2014), held that Martinez and

Trevino apply to Tennessee prisoners.

Martinez and Trevino do not allow ineffective assistance of post-conviction counsel claims

to serve as cause and prejudice for the procedural default of ineffective assistance of appellate

counsel claims. Davila v. Davis, 582 U.S. 521, 529-30 (2017). Further, the Supreme Court has

held that, “under § 2254(e)(2), a federal habeas court may not conduct an evidentiary hearing or

otherwise consider evidence beyond the state-court record based on the ineffective assistance of

state postconviction counsel.” Shinn v. Ramirez, 596 U.S. 366, 382 (2022).

In Grounds Three through Seven of the § 2254 Petition, Petitioner raised IATC claims for

failing to: (a) fully investigate, develop, and pursue an insanity defense (Ground Three, ECF No.

1 at PageID 12-13); (b) interview homicide detective Fausto Frias and call him as a witness

(Ground Four, id. at PageID 14-15); (c) object to “several witnesses testimonies, for various

25

reasons, detrimental to his defense, which were not listed on the petitioner’s indictment” (Ground

Five, id. at PageID 16-18); (d) move for a mistrial because evidence produced at trial of the crime

scene was admissible because the crime scene had been contaminated (Ground Six, id. at PageID

19-20); and (e) file a motion to dismiss the indictment where the grand jury foreman’s signature

had been forged and the indictment was invalid and void because of other grand jury procedures

(Ground Seven, id. at PageID 21-23).

On post-conviction appeal, Petitioner presented a IATC claim about counsel’s failure to

pursue all reasonable avenues of a mental health defense, obtain an independent mental health

expert, and request a jury instruction on diminished capacity. See Richardson, 2019 WL

6341045, at *11.

Respondent contends that Petitioner is not entitled to relief because each IATC ground is

procedurally defaulted; Petitioner has no available state court procedure to exhaust these claims.

(ECF No. 8 at PageID 1147.) Respondent argues that Petitioner does not acknowledge the default

and does not plead cause and prejudice to overcome procedural default. (Id. at PageID 1147-48.)

Respondent addressed Martinez out of an abundance of caution and contends that Martinez is not

applicable because these IATC claims were addressed in the post-conviction trial court and the

defaults occurred on post-conviction appeal. (Id. at PageID 1149-56.)

1. Mental Health Defenses and Instructions

On post-conviction appeal, Petitioner generally addressed mental health defenses with a

focus on diminished capacity, and in Ground Three, Petitioner alleges IATC for failure to pursue

an insanity defense. The claims are similar, and the Court will examine them further to determine

26

whether the claim presented in the post-conviction proceedings is the same as the claim presented

in this habeas case.

The IATC claim about an insanity defense was raised in the post-conviction petition and

at the post-conviction hearing. (ECF No. 7-14 at PageID 838; see ECF No. 7-16 at PageID 958-

60, 980.) Turner, Petitioner’s trial counsel, testified that she did not have clinical support for an

insanity defense and that there were some red flags about Petitioner’s mental health because he

had been in special education classes and had low test scores. (Id. at PageID 996-97, 1000.)

Turner requested that Petitioner be tested by Dr. John Worley for competency, insanity and

diminished capacity and remembered that Petitioner “was presenting himself as more impaired

than he actually is.” (Id. at PageID 998, 1009.) Turner believed that Petitioner was exaggerating

his mental health issues. (Id. at PageID 998-99.) Petitioner was tested a second time and was

again found to be malingering. (Id. at PageID 1009-10.)

Turner then had a different doctor, Lynn Zager, evaluate Petitioner, and both Worley and

Zager concluded that Petitioner was competent and that he did not have a mental health, insanity,

or diminished capacity defense. (Id. at PageID 1010-11.) Based on the evaluations, Turner did

not pursue a mental health-related defense. She explained to Petitioner what the “professionals

were saying” and that there was no support for a mental health defense. (Id. at PageID 1012,

1025.) So, Turner made a strategic decision to pursue self-defense. (Id. at PageID 1025-26.)

The post-conviction court found that Turner “had no bases in fact to claim insanity” and did not

“see where there were any errors, actually on behalf of Ms. Turner.” (Id. at PageID 1036-37.)

27

On post-conviction appeal, Petitioner mentions Turner’s testimony about the insanity

defense. (ECF No. 7-17 at PageID 1053.) However, the focus of the argument pertains to a

diminished capacity defense. (See id. at PageID 1055-58.)

The TCCA addressed Petitioner’s IATC claims about a mental health defense generally.

The TCCA summarized the relevant allegations and evidence as follows:

The petitioner timely filed a pro se petition for post-conviction relief. In the

petition, the petitioner argued trial counsel was ineffective for pursuing a theory of

self-defense rather than insanity, for failing to fully investigate an insanity defense,

and for failing to obtain a mental evaluation regarding the petitioner’s competency

to stand trial or to support an insanity defense. . . .

In an amended petition filed by appointed counsel, the petitioner again argued trial

counsel was ineffective for failing to secure a mental health evaluation to determine

the petitioner’s sanity at the time of the murder and his competency to stand trial.

The petitioner, his mother, and trial counsel testified at the evidentiary hearing.

The petitioner’s mother, Josephine Smith, explained the petitioner struggles with

comprehension, has a short attention span, and was diagnosed with ADHD, mental

depression, bipolar disorder, and schizophrenia. The petitioner was treated at

Whitehaven Mental Health Center for these conditions, but his health records were

destroyed. Ms. Smith stated Dr. Thomas at Whitehaven Mental Health Center told

her that the petitioner will “go in a rage” after which he will not remember what

happened. Though trial counsel never asked, Ms. Smith told trial counsel about

the petitioner’s mental health issues.

Ms. Smith provided additional details regarding the petitioner’s medical and social

history, including that he received Social Security Disability benefits for “[t]he way

he act out,” a learning disability, and manic depression. She also noted the

petitioner made poor grades while attending special education high school classes.

According to Ms. Smith, the petitioner had trouble reading and was often suspended

from school for his behavior. For example, the petitioner would get angry and

throw things, but when Ms. Smith asked him about his behavior, the petitioner

would not remember doing it. Doctors prescribed medication for the petitioner but

told Ms. Smith to expect this behavior. Though Ms. Smith could not remember all

of the medicines prescribed to the petitioner, she generally stated he behaved better

while on medication. Ms. Smith also did not specifically remember the petitioner

scoring 90 on an IQ test or passing hearing and vision tests while in school. Upon

questioning by the post-conviction court, Ms. Smith confirmed the petitioner

28

maintained a driver’s license, two jobs, and graduated from a special education high

school program.

Regarding the petitioner’s present conviction, Ms. Smith explained the petitioner

did not realize or remember that he killed the victim despite the video depicting the

murder. However, she acknowledged the petitioner provided detailed testimony

regarding the murder during trial. Ms. Smith noted she did not want the petitioner

to testify based upon his mental health conditions, but she knew the petitioner

wanted to explain that he did not remember killing the victim. Ms. Smith was

unaware that since being incarcerated, the petitioner has been treated for his mental

health issues.

The petitioner then testified, generally stating trial counsel failed to adequately

investigate his case. The petitioner complained trial counsel did not discuss the

theory of self-defense with him prior to trial and further noted he did not agree with

this strategy. Rather, the petitioner thought the defense’s strategy would be to seek

a verdict for a lesser-included offense like voluntary manslaughter or second degree

murder. The petitioner was also unsatisfied with trial counsel for not pursuing an

insanity defense. However, when asked what trial counsel should have done to

fully investigate a defense of insanity, the petitioner offered nothing. The

petitioner did not believe trial counsel researched his school or medical history, and

he did not remember if trial counsel questioned him about the same during his

testimony. He also did not remember undergoing any mental health evaluations

or the results of the same. The petitioner denied exaggerating his mental health

conditions.

Richardson, 2019 WL 6341045, at *6-7. Petitioner testified that he “did not remember taking any

tests” with Worley or Zager and claimed “[n]obody came and talked to me about nothing.” Id. at

*8. Petitioner admitted that he received Social Security disability, but did not know why; that he

had behavioral issues in school; and that he was taking Percocet for a physical injury at the time

of the shooting. Id. He also admitted that, despite his issues, he had maintained a job and lived

independently. Id.

Turner noted Petitioner’s “mental delays,” decided to incorporate mental health into the

defense, and “detailed her investigation into the petitioner’s social and medical history” gathering

“as much information as she could about the petitioner’s mental health and intellectual disability

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as well as his school and psychological testing records.” Id. Initial and added testing revealed

malingering. However, Turner did not feel she could pursue a mental health defense due to the

absence of medical or clinical support. Id. at *8-9.

The TCCA addressed Petitioner’s IATC claims concerning all potential mental health

defenses, including insanity. For that reason, Petitioner’s habeas claim of IATC concerning an

insanity defense was exhausted. The TCCA cited and applied the correct Supreme Court

precedent in Strickland, see Richardson, 2019 WL 6341045, at *10-11, and opined:

Here, the petitioner argues trial counsel did not pursue “all reasonable avenues of

defense relating to [his] mental illness” which prohibited trial counsel from

requesting a jury instruction on diminished capacity. The petitioner asserts an

instruction on diminished capacity would have negated the mens rea requirement

of first degree murder and would have led the jury to return a lesser-included

verdict. The State contends trial counsel made a strategic decision to pursue a

defense of self-defense after reviewing the petitioner’s school and mental health

records and obtaining two mental health evaluations prior to trial. Upon our

review, we agree with the State.

At the evidentiary hearing, trial counsel explained that after meeting with the

petitioner and speaking with his mother, she believed he suffered from cognitive

delays. As a result, trial counsel began investigating the petitioner’s school,

medical, and psychological testing records in order to determine if she could pursue

a defense based upon the petitioner’s mental health. Relying upon an initial

investigation conducted by Gloria Shettles, trial counsel learned the petitioner had

trouble with reading and comprehension and took special education classes in high

school. Trial counsel then obtained a court-ordered mental health evaluation to

determine if she could gather medical evidence to support a defense based upon

diminished capacity or insanity. The initial report by Dr. Worley, however, did

not support either and suggested the petitioner was exaggerating his mental health

condition. Met with this roadblock, trial counsel petitioned the trial court for a

second mental health evaluation based upon her belief that the petitioner suffered

from mental health issues. However, the second mental health evaluation,

performed by Dr. Zager, also did not support any defenses based upon the

petitioner's mental health and further suggested the petitioner was malingering.

Absent any medical evidence to support a defense based upon the petitioner’s

mental health, trial counsel decided to pursue a theory of self-defense after learning

the victim shot the petitioner in 2012.

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The petitioner suggests trial counsel was ineffective for failing to obtain relevant

school and medical records, an independent mental health evaluation, or an

independent expert to support a defense based upon his mental health. The record,

however, demonstrates trial counsel used an investigator to obtain the petitioner’s

school and medical records, she discussed the petitioner’s mental health history

with his mother, and she secured two mental health evaluations in order to identify

any possible defense theories she could advance based upon the petitioner's mental

health. When trial counsel learned there was no medical evidence to support such

a defense, she chose to pursue a theory of self-defense instead, believing she could

reasonably argue the petitioner feared the victim based upon their history. Nothing

in the record indicates trial counsel’s strategy was not sound, and simply because

trial counsel’s strategy was unsuccessful does not render her assistance ineffective.

See Strickland, 466 U.S. 689; Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.

App. 1992). The petitioner has failed to show how trial counsel’s pre-trial efforts

to pursue a defense theory based upon the petitioner’s mental health constituted

ineffective assistance of counsel. See Strickland, 466 U.S. at 694. The petitioner

is not entitled to relief.

See Richardson, 2019 WL 6341045, at *11.

After two psychological evaluations and findings of malingering, there was no evidence

that Petitioner suffered a mental health issue that would support an insanity or incompetency

defense, or a diminished capacity instruction. Petitioner has not presented evidence of a mental

health issue that would have supported his defense. The TCCA’s decision was not contrary to or

an unreasonable application of Strickland and was not based on an unreasonable determination of

facts in light of the evidence presented. Petitioner’s IATC claim for failing to investigate and

pursue an insanity defense is without merit and is DENIED.

2. Procedurally Defaulted IATC Claims

As to the remaining IATC claims, in the post-conviction petition, Petitioner “alleged trial

counsel was ineffective for failing to interview homicide detective Fausto Frias and for failing to

object, for various reasons, to several of the witnesses called by the State” and “asserted trial

counsel was ineffective for failing to file motions to dismiss the indictment, for a mistrial, or for a

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judgment of acquittal.” See Richardson, 2019 WL 6341045, at *6. Petitioner has failed to

exhaust these claims before the TCCA on post-conviction appeal, and any fault for failure to

exhaust the claims would be on post-conviction appellate counsel. The Martinez-Trevino

exception “does not extend to attorney errors in any proceeding beyond the first occasion the State

allows a prisoner to raise a claim of ineffective assistance at trial,” in this case the state post-

conviction petition. See Wallace v. Sexton, 570 F. App'x 443, 453 (6th Cir. 2014); see West v.

Carpenter, 790 F.3d 693, 698 (6th Cir. 2015) (the “ Martinez–Trevino exception does not extend

to attorney error at post-conviction appellate proceedings because those proceedings are not the

‘first occasion’ at which an inmate could meaningfully raise an ineffective-assistance-of-trial-

counsel claims”).

Petitioner’s IATC claims were presented in the post-conviction trial court and denied.

Martinez is not applicable to excuse the procedural default. Petitioner makes no effort to

overcome the procedural default by showing cause and prejudice or a miscarriage of justice.

Petitioner’s remaining IATC claims are procedurally defaulted, and therefore will be DENIED.

VI. CONCLUSION

Because the clams in the § 2254 Petition are without merit or procedurally defaulted, the

Court DENIES the § 2254 Petition. The § 2254 Petition is DISMISSED WITH PREJUDICE.

Judgment shall be entered for Respondent.

VII. 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. §

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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).

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.; see

also id. (“Again, a certificate is improper if any outcome-determinative issue is not reasonably

debatable.”).

In this case, there can be no question that the § 2254 Petition has claims that are without

merit or procedurally defaulted. Because any appeal by Petitioner on the issues raised in his §

2254 Petition does not deserve attention, the Court DENIES a certificate of appealability.

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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 certificate of appealability, 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), that any appeal in this matter would not be taken in good faith. Leave

to appeal in forma pauperis is DENIED.7

IT IS SO ORDERED, this 23rd day of September, 2024.

s/John T. Fowlkes, Jr.___________

JOHN T. FOWLKES, JR.

United States District Judge

7 If Petitioner files a notice of appeal, he must pay the full $605 appellate filing fee or file

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

Appeals within 30 days of the date of entry of this order. See Fed. R. App. P. 24(a)(5).

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