McMillion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA

JEREMY MCMILLON, )

)

Petitioner, )

)

v. ) No. 1:23-cv-3-DCLC-MJD

)

KENNETH NELSON,1 )

)

Respondent. )

MEMORANDUM OPINION

Before the court is a pro se petition in which Petitioner, a state prisoner, seeks habeas

corpus relief under 28 U.S.C. § 2254 from his state court conviction for first-degree murder that

arose from the shooting death of Larry Lebron Parks (“the victim”) [Doc. 1]. State v. McMillon,

No. E2010-01091-CCA-R3CD, 2011 WL 4424732, at *1 (Tenn. Crim. App. Sept. 22, 2011), perm.

app. denied (Tenn. Feb. 15, 2012) (“McMillon I”). In his petition, Petitioner challenges this

conviction by asserting claims alleging (1) denial of a fair and impartial trial in a manner that

violated his right to due process; (2) prosecutorial misconduct; (3) ineffective assistance of

counsel; and (4) his counsel had a conflict of interest [Id. at 5–10]. Respondent opposed the

petition [Doc. 16] and the state court record [Doc. 15]. Petitioner replied in which he also appears

to seek to add various claims and theories to support his previously asserted claims [Doc. 19]. In

accordance with the Court’s previous order [Doc. 21], Respondent then filed a sur reply addressing

1 The Court’s docket currently lists the State of Tennessee as Respondent. But Kenneth

Nelson is the proper Respondent here, as he is the Warden of the Riverbend Maximum Security

Institution, see https://www.tn.gov/correction/state-prisons/state-prison-list/riverbend-maximum-

security-institution.html (last visited Jan. 15, 2026), which is where Petitioner is confined [Doc. 1

p. 1]. Rule 2(a) of the Rules Governing 2254 Cases. Accordingly, the Clerk is DIRECTED to

substitute Kenneth Nelson as Respondent here.

Petitioner’s apparent attempt to amend his petition through his reply [Doc. 22]. In the sur reply,

Respondent asserts that any claims for § 2254 relief that Petitioner seeks to add in his reply are

time-barred and procedurally defaulted, and that Petitioner has shown no reason to excuse that

default [See, generally, id.].

After reviewing the parties’ filings and the state court record, the Court finds that Petitioner

is not entitled to habeas corpus relief under § 2254 for any of his claims. Accordingly, the Court

will not hold an evidentiary hearing, see Rules Governing § 2254 Cases, Rule 8(a) and Schriro v.

Landrigan, 550 U.S. 465, 474 (2007), the petition will be DENIED, and this action will be

DISMISSED.

I. BACKGROUND

After at least two witnesses identified Petitioner to police as a person who carried a gun to

the area from which gunfire that killed the victim had come [Doc. 15-30, p. 69–85, 153–169], a

grand jury indicted Petitioner for first-degree murder, among other offenses [Doc. 15-1, p. 7]. The

Tennessee Court of Criminal Appeals (“TCCA”) summarized the evidence presented at

Petitioner’s trial on that charge as follows2:

At trial, the State’s star witness was Corey Haden, the cousin of Co-defendant Eric

Carter. Mr. Haden admitted at trial that his testimony at trial was inconsistent with

his testimony at a prior preliminary hearing. Mr. Haden stated that he had made

mistakes in his earlier testimony. At the time of the incident involved, Mr. Haden

was a juvenile. According to Mr. Haden, on the evening of March 7, 2007, he was

at a cousin’s home recording some songs in a recording studio. Around 8:00 p.m.,

Mr. Carter arrived and told Mr. Haden that he was going to go to the “front store,”

a convenience store and gas station in the East Lake section of Chattanooga,

Tennessee. Mr. Carter asked Mr. Haden if he wanted to join him. Mr. Carter was

driving his champa[gn]e-colored Ford Expedition.

2 Although the Court has reviewed the entire state-court record, it draws its summaries of

the relevant state-court proceedings from the Tennessee Court of Criminal Appeals’ opinions, as

Petitioner does not dispute those factual recitations.

When they arrived at the store there were a lot of people hanging out. Mr. Haden’s

brother was there. Mr. Haden got out of the vehicle to visit with his brother. Mr.

Haden saw Appellant pull up in a red Pontiac Grand Am. Appellant approached

Mr. Carter and said that he “heard” Mr. Carter’s “car got shot up.” Appellant asked

Mr. Carter if he wanted to “do something about it.” Mr. Carter told Appellant he

wanted to “ask the dude named Peyton why he shoot [sic] up my car.” Appellant

told Mr. Carter he was a “pussy” and a “bitch” that “let the n____ shoot your car

up and ain’t going to do nothing about it.” The men seemed to get into an argument

about the issue. Finally, Mr. Carter told Appellant to follow him. Appellant never

rode in Mr. Carter’s vehicle.

At trial, Mr. Haden testified that Appellant was mad about an incident that had

happened a few weeks prior during which one of his friends was shot in the face by

someone in Eastdale. Appellant had made it known that he was out to “get” the

people responsible for the shooting.

At that time, Mr. Carter drove his Expedition to “Mr. G’s” house. Mr. Haden rode

with him in the vehicle along with two other individuals; they were followed by

Appellant and Lemario Branham in the red Pontiac. Mr. Carter got out, went inside,

and returned with a rifle. The two cars traveled quickly down a side street off of

Gillespie before stopping. Mr. Branham and Appellant exited their vehicle and

walked up to Mr. Carter’s Expedition. Mr. Branham had a handgun. Mr. Branham

[and] Appellant[3] . . . went down the hill on foot. Mr. Haden stayed back at the

vehicle and could not see them anymore.

Mr. Haden heard gunshots from at least two different guns. Mr. Haden asked Mr.

Carter what was going on down there. Mr. Carter told him not to worry about it.

Mr. Branham and Appellant ran back up the hill. The two unidentified men who

were riding with Mr. Carter hopped out of his car and into Appellant’s car before

they sped off. Mr. Haden did not see a gun in Appellant’s hand.

The two vehicles traveled back to “Mr. G’s” house where Mr. Haden saw Appellant

getting out of the vehicle with an AK–47 assault rifle. According to Mr. Haden,

Appellant bragged, “I hit one of them n____s, one of them n____s dropped.” Mr.

Haden described Appellant as “happy” and “excited.” Mr. Haden was able to

identify Appellant in a lineup.

Gregory Guill[or]y, or “Mr. G,” testified that he saw Mr. Carter on the night of the

incident. Mr. Carter drove his vehicle to the house that night to get a gun. He was

accompanied by a red car. Mr. Carter handed “Mr. G” an assault rifle that was still

hot. Another person handed a handgun to Mr. Carter in a plastic bag. Mr.

3 The Tennessee Court of Criminal Appeals’ opinion states that Mr. Haden testified that

Mr. Carter also went down the hill. McMillon I, at *2. The trial transcript reflects otherwise. [See,

e.g., Doc. 15-7, pp. 74–76, 91–93; Doc. 15-8, p. 53]. This discrepancy, however, is immaterial to

the resolution of Petitioner’s § 2254 claims.

Guill[or]y testified that he later gave the assault rifle to Mr. Carter’s father. Mr.

Guill[or]y testified that he did not see Appellant at his house that night.

Mr. Guill[or]y recalled that Mr. Haden was sitting in the passenger seat of Mr.

Carter’s vehicle and there were four people in the red car. One of the men in the

red car got out and threw something in the drainage ditch. Officers later recovered

a live .223 round in the drainage ditch during the investigation. They also found a

.380 semi-automatic handgun in a plastic bag in Mr. Guill[or]y’s backyard and a

.260 caliber bolt-action rifle in the front yard.

Charlie Jefferson, a friend of the victim, testified at trial. Mr. Jefferson was with

the victim on the night of the incident. The two decided to walk to the store for a

quart of beer to split. They heard gunshots, and Mr. Jefferson instructed his friend

to “get down.” The men tried to run hand in hand to the “corner” and “hide.” The

victim let go of Mr. Jefferson’s hand, and the two men fell to the ground. When

the shots ended, Mr. Jefferson found his friend lying in a ditch “all twisted.” Mr.

Jefferson stated that the bullets came from the hill and were “flying everywhere.”

Mr. Jefferson testified that there were some “young guys” standing in the street

before the shooting started.

Fingerprints were lifted from the Expedition that matched the fingerprints of Mr.

Carter, Mr. Branham, Mr. Haden, and Appellant. Appellant’s fingerprints were

located near gunshot residue primer that was found on the Expedition on the

passenger-side doorframe and armrest. Appellant’s prints were on the inside and

outside of the passenger side door. At the scene, authorities found twelve .223 shell

casings and three .380 shell casings. The assault rifle was not located.

Several other witnesses came forward that were able to testify that a tan SUV and

red car were seen on the night of the crime driving quickly down the street.

Mary Goolsby, a pathologist, testified that the victim suffered a gunshot wound to

the chest. The victim was not dead on arrival at the hospital but later died as a result

of the gunshot wound. The bullet entered the victim’s body through his back, split

his spinal cord in two, passed through his liver, his right lung, and exited the body

through the chest. Marie McGee, a forensic technician who assisted in the autopsy

of the victim, testified at trial. She testified that a bullet was found during the

victim’s autopsy and the bullet must have fallen out of the victim’s clothing. The

bullet was identified as a .223 caliber bullet. There was testimony from a firearms

expert that the .223 caliber bullet could not have been fired from the rifle that was

recovered from Mr. Guill[or]y’s yard.

Appellant called Carol Pilcher, Appellant’s aunt, to testify. At the time of the

incident, Ms. Pilcher recalled that Appellant had been staying with her for a few

weeks. On the evening of the incident, Appellant came home between 8:30 p.m.

and 9:00 p.m. Ms. Pilcher remembered the time because the Jeopardy television

show had concluded. Ms. Pilcher admitted that she had a prior felony for a forged

check.

McMillon I, at *1–3. The jury found Petitioner guilty of first-degree murder [Doc. 15-1, p. 71],

the trial court entered judgment against Petitioner for this charge [Id. at 72], the TCCA affirmed

the trial court’s judgment against Petitioner, and the Tennessee Supreme Court (“TSC”) denied

review. Id. at *10.

Petitioner filed a pro se petition for post-conviction relief from his convictions [Doc. 15-

26, p. 3–67] and an amended petition incorporating his earlier petition [Id. at 96–102]. The trial

court held a hearing on the petition, which the TCCA summarized as follows:

At the November 2018 evidentiary hearing, the petitioner notified the court that

after submitting his amended post-conviction petition, “he received a letter from

the State about some unprocessed evidence found at the M[edical] E[xaminer]’s

office” that related to his trial case. The evidence was sealed in a package, and a

report identified it as a “bullet from victim’s clothing.” The petitioner said that the

State agreed that the unprocessed evidence should be tested. The post-conviction

court noted that the petitioner’s post-conviction counsel had been appointed to

become a magistrate judge and that the evidentiary hearing was occurring at “the

end of her six-month allotment to wrap up her pending matters” before assuming

that position. Because of post-conviction counsel’s time restraints, the post-

conviction court determined to proceed with the evidentiary hearing while post-

conviction counsel was still available to represent the petitioner and allowed the

petitioner an opportunity to amend his post-conviction petition “once the bullet has

been processed if the next attorney determines that that presents an issue that is

appropriate for post-conviction review.” Both parties agreed.

The petitioner testified that the only discovery materials that trial counsel provided

him were “statements from witnesses” and the transcript of the preliminary hearing.

He said that he received a Tennessee Bureau of Investigation (“TBI”) report

involving gunshot reside [sic] from a co-defendant “a couple of days before trial.”

He said that he first received fingerprint evidence during trial, saying, “I never got

that in discovery.” He said that he asked trial counsel “several times to get a copy

of my full discovery.” When counsel did not provide the materials, the petitioner

“had to write to the Board of Professional Responsibility” (“the Board”). The

petitioner said that the Board told trial counsel to get discovery materials to the

petitioner “within 30 days,” at which point, trial counsel “came and talked to me,

told me he was going to get it to me, but I never received it.”

The petitioner said that he communicated with trial counsel through letters and

telephone calls, noting that “I called his office several times and sometimes just left

messages with his secretary to get back, and sometimes he didn’t.” When trial

counsel “failed to respond, I had to write the [Board] again.” The petitioner

estimated that he met with counsel only three times in person before trial. He felt

that his discussions and preparations with trial counsel were insufficient to prepare

for trial. “There’s a lot of stuff that we were asking for that we never got before

trial . . . and [trial counsel], he failed . . . to file a continuance so that we can get the

evidence that we needed . . . [to] prepare a proper defense.”

The petitioner said that the State waited until “like, a week before trial” to send a

shirt that the petitioner had worn the day of the offenses to the lab for testing. He

recalled that the trial court admonished the State for its delay in seeking to have the

evidence tested. He said that the testing “was negative on all my clothes” but that

trial counsel did not receive the results of that testing until “a day or two before” or

sometime “during the trial.” The petitioner reiterated that he asked trial counsel to

seek a continuance “so that we can be able to look at the evidence and prepare a

proper defense so we won’t go in and just rush.”

The petitioner testified that the day before trial, counsel told him that the

petitioner’s fingerprint had been found on the window of Mr. Carter’s vehicle and

that he explained to trial counsel how his print came to be on Mr. Carter’s vehicle.

He said that Mr. Carter explained the same circumstances in an affidavit. The

petitioner also said that sometime before trial, he learned that Mr. Branham had

written a letter to Mr. Carter, saying that they were “gonna put it on” and “keep

blaming” the petitioner for the offense. The petitioner said that Mr. Carter gave the

letter to trial counsel but that counsel did not address the letter at trial despite the

petitioner’s asking him to bring it up.

The petitioner said that counsel advised him not to testify at trial because the State

would “try to bring up my past history.” He said that despite his having “no past

violent history,” counsel “told me it was not in my best interest to testify in my own

trial on my behalf.” The petitioner said that he wanted to testify but that counsel

never told him that he had a right to testify.

The petitioner said that in a pretrial statement, the victim’s son, Eric Norman,

indicated that he knew “who the perpetrators were” and identified one of the

perpetrators as “Bone.” The petitioner said that he wanted trial counsel to call Mr.

Norman to testify to the identity of the perpetrators but that counsel told him that

Mr. Norman was “the son of the victim” and that counsel had “been representing

him probably, like, over 25 years, so if we do call him as a witness,” there “would

be certain things that he can’t ask him about because prior representation towards

him and his family.” The petitioner said that he filed two or three “motions to

relieve counsel” because counsel “was the victim’s family lawyer.” He said that

the court denied one of the motions and did not address the others.

The petitioner said that his “Aunt Carol” and the father of his aunt’s baby told trial

counsel that the petitioner had been with them on the night of the offenses. To his

knowledge, trial counsel did not speak with anyone else in his family. The

petitioner wanted trial counsel to investigate certain issues, including statements by

Mr. Haden that the petitioner had a red car and that someone named Tim Sexton

had shot a friend of the petitioner in the face. The petitioner said that he did not

own a red car and that he “never had a problem” with Mr. Sexton.

The petitioner said that at trial, the State introduced “a .260 rifle and a mask” that

had been discovered at the house of Greg Guillory. He said that he had never been

to Mr. Guillory’s house and that the rifle was “brand new” and had “never been

used,” and, despite these items having nothing to do with his case, trial counsel

failed to object to their introduction.

The petitioner testified that during jury voir dire, the State referred to the area where

the offenses occurred as “a war zone” despite the trial court’s excluding evidence

of gang activity and admonishing the State to avoid referring to the area as “‘the

wild Wild West.’” The petitioner believed that the prosecutor inflamed the

emotions of the jury during voir dire by his comments and by showing pictures of

the petitioner’s tattoos in an attempt to show that the petitioner was “a thug.”

During cross-examination, the petitioner acknowledged that he filed one of the

motions to relieve counsel after trial but said that he “filed two before that which

w[ere] never addressed.” He said that he waited to move to relieve counsel until

the Board “let me know what action was taken” on his complaints. He also said

that he sought to have new counsel on appeal because trial counsel “wasn’t effective

in my trial and I didn’t want him to file my appeal or my motion for new trial and

mess things up any more worse than they was.” He said that he wrote to the Board

about trial counsel three times: in “early 2008,” “later on in 2008,” and the

“beginning of 2009.” He said that two of the letters were about trial counsel’s prior

representation of the victim’s son and one was about counsel’s failure to

communicate with him. He acknowledged that he did not raise these issues with

the trial court but explained that the Board “wrote me back and they told me that

they was going to contact [trial counsel]” and “would let me know what action was

taken.” He said that in each instance, the Board contacted trial counsel about the

complaint and that trial counsel “wrote me back and said he was going to ... do

better, he was going to be more effective then.” The petitioner said that he wrote a

letter to the trial judge to complain of trial counsel’s representation but that he heard

from the Board before mailing it. He said that in another instance, he wrote a letter

to the trial court in January or February 2009 “and asked him to relieve counsel”

but the issue “was never addressed.” He said that although he did not receive a

hearing on the request for new counsel, trial counsel had been notified about the

matter “because he came and asked me about it.”

The petitioner said that he “felt like [trial counsel] wasn’t fighting for me and doing

what he [was] supposed to do for me in my defense because of the fact that he was

the victim’s family lawyer . . . . I felt like he had loyalty . . . to the victim’s family.”

He said that he did not learn of trial counsel’s having previously represented

members of the victim’s family until February or March 2009. He said that counsel

told the trial court of his prior representation of the victim’s family because “he had

to.”

The petitioner said that counsel told him that if he called Mr. Norman as a witness

that counsel would not be able to ask Mr. Norman “certain questions” about Mr.

Norman’s “past and questions about the people that he knew, like the guys he said

he knew” because counsel had “represented him prior to my trial.” The petitioner

explained that Mr. Norman had made a statement that he had seen the four men

involved in the shooting and that “he knew the guys personally” and that “nary one

of them was me.” The petitioner further explained that Mr. Norman “used to be a

gang member,” and the men that Mr. Norman reported seeing during the shooting

were “some of his gang members.” Because trial counsel learned of Mr. Norman’s

gang affiliation in the course of a “client-attorney relationship,” counsel said that

he “wouldn’t be able to ask [Mr. Norman] about his past and about the guys he

knew and how did he know them.” The petitioner said that trial counsel talked to

Mr. Norman sometime before trial and that Mr. Norman “was irate and . . . cussed

[counsel] out.” Trial counsel told the petitioner that Mr. Norman would be a hostile

witness if called at trial.

The petitioner said that he had an alibi and that at the time of the offenses, he was

at his aunt’s house on 28th Street in “the Eastlake area.” He acknowledged that he

spoke with Mr. Carter at approximately 8:00 p.m. at an Eastlake store the night of

the shooting but said that he returned to his aunt’s house before the shooting. The

petitioner said that although his aunt, Carol Pilcher, testified at trial as an alibi

witness, trial counsel should have further investigated alibi witnesses, including

Vincent Johnson, the father of Ms. Pilcher’s baby, and Ms. Pilcher’s teenage son

and 11- or 12-year-old daughter, all of whom were at Ms. Pilcher’s house when the

petitioner arrived that night.

The petitioner acknowledged that trial counsel learned of the negative results of the

gunshot residue tests “the day before trial” but said that counsel did not discuss it

with him until “[t]he day during trial.” He asserted that had trial counsel moved for

a continuance as he asked, counsel would have had time to obtain the written reports

and “would have been able . . . to actually show to the jury the letters from the TBI

personnel that my hands w[ere] negative on gunshot residue and my clothes [were]

negative on gunshot residue. He never had the paperwork to show that.” The

petitioner acknowledged that trial counsel “mentioned” the negative gunshot

residue tests at trial.

The petitioner said that during jury voir dire, the State asked the jury, “‘Are you

familiar with the Eastdale area?’” When the potential jurors indicated that they

were, the State said, “‘So you know about the gangs and the, and the wild Wild

West.’” The petitioner said that the prosecutor then said about the neighborhood:

“‘Oh, it’s a war zone. You never been in Eastdale, it’s a war zone.’”

On redirect examination, the petitioner said that the gunshot residue test results that

were returned the day before trial indicated that the petitioner’s hands and clothes

were negative for gunshot residue but that the seat in Mr. Carter’s Expedition where

Mr. Haden claimed to be seated “the whole entire time” was positive for gunshot

residue. The petitioner said that in reviewing the discovery materials and the

proceeding transcripts, he discovered inconsistent statements from Mr. Haden and

asserted that counsel did not adequately attack Mr. Haden’s credibility. He also

said that counsel failed to explain to the jury how the petitioner’s fingerprints came

to be on the inside of the passenger’s door of Mr. Carter’s vehicle.

Upon questioning by the court and a review of “the rule docket,” the petitioner

acknowledged that the only letters that he mailed to the trial court seeking to have

trial counsel removed from his case were sent after trial. He said that he had written

two other letters to the court but that he “was mistaken” about believing that he had

mailed them.

Trial counsel testified that he did not recall any letters from the Board related to his

representation of the petitioner but acknowledged that it was “possible I could have

gotten one stating . . . that [the petitioner] wanted to see me or something of that

nature.” Counsel said that the petitioner’s assertion that counsel met with him only

a few times before trial was “just outrageous.” Counsel said that he “went to the

TBI office more than once to interview firearm experts, blowback experts, [and a]

fingerprint expert.” Trial counsel could not recall whether he sought any

continuances or whether any were granted in this case but said, “Just like other

murder cases, there probably were continuances.” He said: “I would not have

pushed the [c]ourt to try the case. If the case could have been continued, that would

have been fine with me.”

As to counsel’s prior representation of Mr. Norman, trial counsel said, “I don’t

know that I was aware that I knew Eric Norman from the outset of the case, but I

believe at some point I recalled that I may have represented Eric Norman, and I

tried to go back and find out whether I had done so or not.” He continued, “It would

have been years, probably many years prior to the trial of this case.” Counsel said

that he did not know what the petitioner meant when he said that counsel was the

victim’s “family lawyer.” Counsel recalled that he “met with Mr. Norman, ... and

he did not want to testify” because he “was concerned about gang violence and he

wasn’t happy about the idea of coming to court.” Trial counsel said that Mr.

Norman did not “identify the four people that he said he saw” other than referencing

“somebody named Bone.” Counsel said that Mr. Norman “would not tell me if he

came to court and testified whether he would state that [the petitioner] was involved

or whether he was not involved. He wouldn’t commit to either one.” Mr. Norman

also told counsel that “he would wear a tee shirt to court with [the petitioner’s]

picture on it flashing a gang sign if he had to come to court.” Counsel determined

that Mr. Norman “was going to be unpredictable and perhaps not helpful.” Counsel

denied that his prior representation of Mr. Norman affected his decision whether to

call him as a witness.

Trial counsel recalled that he objected at trial to the State’s use of the mask

discovered at Mr. Guillory’s house. Counsel also recalled that he met with Ms.

Pilcher and another relative of Ms. Pilcher’s to investigate the petitioner’s alibi

defense. Trial counsel said that in hindsight, he “regret[ted] that Ms. Pilcher

testified.” He said that he did not think that it was a good strategy to call her as a

witness but that the petitioner “was emphatic that he wanted her to testify, so I

called her.”

Trial counsel did remember receiving a letter from Mr. Carter to Mr. Branham but

said that the petitioner asked him to speak with Mr. Carter after Mr. Carter had

reached out to the petitioner. Trial counsel said that he “met with Mr. Carter, got a

statement from him” and “[f]iled something with the [c]ourt.” He said that he also

had Mr. Carter present for the motion for new trial hearing “or some subsequent

proceeding, in an effort to bring that evidence to the [c]ourt’s attention.” He said

that he found the information compelling “[a]t the time.”

Trial counsel said that the State made an initial plea offer with a 25-year sentence.

Through negotiations, the State “came down to 15, and I think the final offer we

got was eight years.” Trial counsel went with the petitioner’s father to speak with

the petitioner because, even with the State’s plea offer, the petitioner “still wanted

to go to trial.”

Trial counsel said that “Corey Haden was the State’s case” and that other than Mr.

Haden’s testimony, “there was not a whole lot of evidence that would have tied [the

petitioner] to this matter.” Counsel said that “[t]here were inconsistencies in [Mr.

Haden’s] statements” but that “I did the best I could” to address them.

During cross-examination, trial counsel said that he met with Ms. Pilcher and Mr.

Johnson and gave notice to the State that he would call both of them as alibi

witnesses. Counsel agreed that he represented Mr. Norman on a driving charge and

a simple possession of marijuana charge and said that he notified the trial court of

this prior representation on March 20, 2009.

Upon questioning by the court, trial counsel said that he did not feel that his prior

representation of Mr. Norman created an actual conflict. He acknowledged that he

gave the following notice to the trial court: “‘I expect testimony of Eric Norman to

be favorable to the defendant. I have no intention to impeach this witness.’” “‘I

obtained no information from my representation of him which might be used for

impeachment or any other purpose in this case.’” “‘I further represent that I have

informed the defendant of my prior representation and that he has no problem with

my continuing to represent him.’” Counsel did not recall the petitioner’s having

any concern over his prior representation of Mr. Norman.

Johnny Lorenzo McMillon, Sr., the petitioner’s father, testified that he remembered

trial counsel’s discussing a plea offer with him one week before trial, but he could

not remember the details of the offer. He said that his initial reaction to the plea

offer was that the case “should go to trial” because “this was like . . . something

just pinned on” the petitioner.

At the close of the evidence, the post-conviction court addressed the issue of the

piece of unprocessed evidence discovered at the Medical Examiner’s office. The

State told the court that it intended to send the item to the TBI laboratory for DNA

and ballistics testing. The post-conviction court determined that it would hold its

ruling in abeyance until the test results from the unprocessed evidence were

complete and the petitioner had an opportunity to consider any additional post-

conviction claims arising from that piece of evidence.

On June 3, 2019, the State entered the TBI test results of the previously-

unprocessed piece of evidence as a late-filed exhibit to the evidentiary hearing. On

July 11, 2019, the post-conviction court appointed the petitioner new counsel and

allowed the petitioner 120 days to “request to reopen the post-conviction hearing.”

On February 24, 2020, the petitioner moved to reopen the evidentiary hearing to

allow him an opportunity to cross-examine the technician who performed the TBI’s

testing.

The evidentiary hearing was reopened on June 3, 2020. Charly Castelbuono, an

employee at the TBI forensic biology unit, testified as an expert in DNA testing and

forensic examination. She said that she received a bullet that was identified as

being “from the victim’s clothing.” In her testing of the bullet, she was able to

“isolate the DNA” and “determine[ ] how much was there,” but she was not able to

develop a DNA profile because she was able to detect only “a very small amount.”

She said that it was possible that the DNA present on the bullet had somewhat

degraded over the years. She said that the bullet had undergone ballistics testing in

2008, and the report of that testing identified the bullet as being “consistent with a

.223 REM caliber class metal-jacketed bullet.”

McMillon v. State, No. E2020-01260-CCA-R3-PC, 2022 WL 1002410, at *1–6 (Tenn. Crim. App.

Apr. 4, 2022), perm. app. denied (Tenn. Sept. 28, 2022) (“McMillon II”).

The post-conviction court denied the petition for post-conviction relief [Id. at 107–8, 110–

35]. The TCCA affirmed the denial of Petitioner’s petition for post-conviction relief, and the

Tennessee Supreme Court declined review. McMillon II, at *8–15.

Petitioner next filed the instant § 2254 petition [Doc. 1].

II. STANDARD OF REVIEW

The Court’s review of the habeas corpus petition is governed by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), which allows a federal court to grant habeas

corpus 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). The AEDPA provides

that the Court may grant such relief on any claim adjudicated on the merits in a state court only

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

application of, clearly established” United States Supreme Court precedent; or (2) “resulted in a

decision that was based on an unreasonable determination of facts in light of the evidence

presented.” See 28 U.S.C. § 2254(d)(1) & (2); Schriro v. Landrigan, 550 U.S. 465, 473 (2007).

This Court may grant habeas corpus relief under the “contrary to” clause where the state

court (1) “arrive[d] at a conclusion opposite to that reached by [the Supreme Court] on a question

of law; or (2) decide[d] a case differently than the Supreme Court on a set of materially

indistinguishable facts.” See Williams v. Taylor, 529 U.S. 362, 405 (2000). The Court may grant

habeas corpus relief under the “unreasonable application” clause where the state court applied the

correct legal principle to the facts in an unreasonable manner. Id. at 407.

But even an incorrect state court decision is not necessarily unreasonable. See Schriro, 550

U.S. at 473 (“The question under AEDPA is not whether a federal court believes the state court’s

determination was incorrect but whether that determination was unreasonable—a substantially

higher threshold.” (citing Williams, 529 U.S. at 410)). Rather, this Court may grant relief for a

claim decided on its merits in state court only where the petitioner shows that the state court ruling

“was so lacking in justification that there was an error understood and comprehended in existing

law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103

(2011).

Also, before a federal court may grant habeas corpus relief, the petitioner must have

exhausted his available state remedies for the claim. 28 U.S.C. §2254(b)(1); O’Sullivan v.

Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires a petitioner to have “fairly presented”

each federal claim to all levels of the state appellate system to ensure that states have a “full and

fair opportunity to rule on the petitioner’s claims.” Manning v. Alexander, 912 F.2d 878, 881 (6th

Cir. 1990) (citing Justices v. Boston Mun. Court v. Lydon, 466 U.S. 294, 302–03 (1984)). For a

petitioner to have exhausted a § 2254 claim, he must have presented “the same claim under the

same theory” to the state courts. Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987); see also

Wagner v. Smith, 581 F.3d 410, 418 (6th Cir. 2009) (finding constitutional claim must be presented

in federal court under the same theory as presented in state appellate process). In Tennessee,

presentation of the claim to the TCCA satisfies this requirement. Tenn. S. Ct. R. 39.

If a prisoner never presented a claim to all state court levels and a state procedural rule now

bars presentation of the claim, he procedurally defaulted that claim. Coleman v. Thompson, 501

U.S. 722, 731–32, 750 (1991). In those cases, the claim is technically exhausted but procedurally

defaulted. Gray v. Netherland, 518 U.S. 2074, 2080 (1996); Coleman, 501 U.S. at 732; Jones v.

Bagley, 696 F.3d 475, 483 (6th Cir. 2012) (“When a petitioner has failed to present a legal issue

to the state courts and no state remedy remains available, the issue is procedurally defaulted.”). In

Tennessee, petitioners may generally proceed only through one full round of the post-conviction

process, and Tennessee imposes a one-year statute of limitation on such actions. Tenn. Code Ann.

§ 40-30-102(a) (one-year limitation period), § 40-30-102(c) (“one petition” rule).

Procedural default may also occur when a petitioner presented the claim to the highest state

court, but that court could not “reach[] the merits of the petitioner’s claim” because the petitioner

failed to comply with an applicable state procedural rule, which is regularly enforced and an

independent state ground that supports the judgment. Walker v. Martin, 562 U.S. 307, 315 (2011).

On federal habeas review, the district court may review a procedurally defaulted claim only

where the petitioner shows cause for that default and actual resulting prejudice, “or . . . that failure

to consider the claim[] will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at

749–50. Errors of post-conviction counsel cannot generally serve as “cause” to excuse a

procedural default. Coleman, 501 U.S. at 753–53. But the Supreme Court established an equitable

exception to this rule in Martinez v. Ryan, holding that the inadequate assistance of post-conviction

counsel or the absence of such counsel may establish cause for a prisoner’s procedural default of

an ineffective assistance of trial counsel claim under certain circumstances. Martinez v. Ryan, 566

U.S. 1, 9, 17 (2012). The Supreme Court has described the Martinez exception as follows:

[The exception] allow[s] a federal habeas court to find “cause,” thereby excusing a

defendant’s procedural default, where (1) the claim of “ineffective assistance of

trial counsel was a “substantial” claim; (2) the “cause” consisted of there being “no

counsel” or only “ineffective” counsel during the state collateral review

proceeding; (3) the state collateral review proceeding was the “initial” review

proceeding in respect to the “ineffective-assistance-of-trial-counsel claim;” and (4)

state law requires that an “ineffective assistance of trial counsel [claim] . . . be

raised in an initial-review collateral proceeding.”

Trevino v. Thaler, 569 U.S. 413, 423 (2013) (quoting Martinez, 566 U.S. at 13–14, 16–17). The

Martinez exception applies in Tennessee. Sutton v. Carpenter, 745 F.3d 787, 792–95 (6th Cir.

2014). But Martinez does not excuse a petitioner’s failure to develop a factual record for a claim,

even where he attributes that failure to the ineffective assistance of his post-conviction

counsel. Shinn v. Ramirez, 142 S. Ct. 1718, 1735 (May 23, 2022).

III. ANALYSIS

The Court will first summarize the claims Petitioner has raised in his relevant filings before

addressing the untimeliness of any new claims in Petitioner’s reply, Petitioner’s procedural default

of the claims and theories in his reply that he did not raise to the TCCA, and Petitioner’s remaining

claims.

A. Petitioner’s Relevant Filings

In his direct appeal challenging his conviction, Petitioner asserted claims that (1) the

evidence was insufficient to support his conviction; (2) no evidence other than the testimony of

Mr. Haden, as an alleged uncharged accomplice, supported Petitioner’s conviction; (3) the trial

court erred in admitting the bullet found during the victim’s autopsy as evidence; and (4) the trial

court erred in failing to grant a new trial based on an affidavit from Mr. Carter exonerating

Petitioner [Doc. 15-20]

In his appeal of the denial of his petition for post-conviction relief to the TCCA, Petitioner

asserted claims that (1) his counsel was ineffective with regard to his prior representation of Mr.

Norman or, alternatively, his counsel was ineffective with regard to interviewing Mr. Norman

before trial; (2) his counsel was ineffective for not asking for a continuance on March 23, 2009;

(3) his counsel was ineffective for allowing the prosecution “to subject the jury to bias” through

“an irrelevant life photograph of the victim, inflammatory statements, and the explanation of the

law and courts,” and the prosecution also committed prosecutorial misconduct through its

“improper statements of law” and “inflammatory statements”; (4) his counsel was ineffective with

regard to his cross-examination of Mr. Haden due to his inadequate preparation and failure to seek

a continuance; (5) his counsel was ineffective for not cross examining Mary Goolsby regarding

improper expert testimony about “low velocity bullets and their indicia”; (6) his counsel was

ineffective for not objecting to hearsay testimony from Officer Jones regarding where the bullets

came from; (7) his counsel was ineffective for not objecting to speculative evidence from Parnell

Bell regarding the owner of the tan SUV; (8) his counsel was ineffective for not objecting to

hearsay and speculative evidence from Mr. Guillory; (9) his counsel was acted deficiently “by

ineffectively presenting any defense”; (10) his counsel was ineffective for not communicating an

eight-year guilty plea offer; and (11) the cumulative errors of Petitioner’s trial counsel entitled him

to relief because the prosecution called fourteen witnesses, but Petitioner’s counsel only called

two, and (a) only one witness, specifically Mr. Haden, identified Petitioner, and his testimony was

impeached as inconsistent; (b) five witnesses were identified as part of Petitioner’s ineffective

assistance of counsel claims; (c) the timing of the fingerprints entered into evidence was not

established; and (d) defense counsel was deficient regarding presenting a defense because he

“abandoned the defense witnesses’ credibility and then argu[ed] unsupported argument before the

jury” [Doc. 15-32].

In his § 2254 petition, Petitioner challenges his conviction by asserting that (1) he was

denied a fair and impartial trial in a manner that violated his right to due process, in support of

which he states that (a) the prosecution used “false evidence and false testimony to convict [him],”

(b) a .260 action bolt rifle was presented as evidence even though no murder weapon or fired

weapon was ever found, and (c) the prosecution’s “star witness” made inconsistent statements and

admitted to lying at trial; (2) the prosecution made improper statements to the jury; (3) his counsel

was ineffective because he allowed the prosecution to use false evidence to convict him, failed to

object to the prosecutor’s improper remarks, and did not raise certain issues on direct appeal that

Petitioner asked him to raise; and (4) his counsel had a conflict of interest based on his prior

representation of Eric Norman [Doc. 1 p. 5–11].

Petitioner’s last relevant filing is his reply to Respondent’s response in opposition to his

petition, which he signed on August 25, 2023 [Doc. 22]. This filing is forty-five mostly single-

spaced pages of dense, repetitive, and lengthy factual and legal arguments and citations [See,

generally, id.]. In this reply, Petitioner raises various legal claims and theories, many of which he

did not previously raise in his timely petition [Doc. 1] and/or to the TCCA in his direct appeal and

appeal of the denial of his petition for post-conviction relief [Docs. 15-20, 15-32].

In the first twenty pages of his reply, Petitioner asserts that, among other things, (1) the

prosecution violated Brady v. Maryland, 373 U.S. 83, 87 (1963) by suppressing evidence that

favored Petitioner; (2) the prosecution used false testimony against Petitioner in violation of the

Napue v. Illinois, 360 U.S. 264 (1959) and Giglio v. United States, 405 U.S. 150 (1972) line of

cases; (3) he was convicted based on solely on the unsubstantiated testimony of an uncharged

accomplice, namely Mr. Haden, in violation of Tennessee law and despite Mr. Haden’s previous

statements inconsistent with his trial testimony; (4) his counsel failed to ask for a continuance after

the late analysis of Petitioner’s clothes; (5) his counsel was ineffective with regard to Ms. Pilcher,

a surveillance recording, Eric Norman, a letter from Lemario Branham, introduction of a mask and

a rifle from Mr. Guillory’s house as evidence, and the prosecution’s improper statements; (6) the

prosecution’s statements referring to groups of criminals and street violence and characterizing

Eastdale as violent were improper; (7) he has raised most, if not all, of the claims from his post-

conviction appeal and direct appeal in this action; and (8) he should be able to raise claims for the

ineffective assistance of his counsel on direct appeal in this action [Doc. 19 p. 1–20].

In the next eighteen pages of his reply, Petitioner cut and pastes Respondent’s response in

opposition to his petition [Id. at 20–38].

Then, in the last seven pages of his reply, Petitioner asserts (1) that the trial court denied

his requests for a new lawyer; (2) that his trial counsel did not sufficiently communicate with him

during the criminal proceeding, did not investigate or present mitigation evidence, and was

generally deficient; (3) that the cumulative errors of his counsel and the trial court denied him a

fair and impartial trial in violation of his due process rights; (4) a claim for violation of the

Confrontation Clause; (5) that the prosecution violated Brady and presented false

evidence/testimony; and (6) that his counsel failed to timely meet with him, “accorded the state

requested introductions at trial for the first time,” and “[sought] jury out hearing for introduction

of discoverable proof at trial for prosecuting the case” [Id. at 38–44]. Petitioner then states that

the Court should review all his claims on the merits [Id. at 45].

B. Reply Claims

In his reply, Petitioner seeks to bring a number of new substantive claims and/or new

theories in support of previously raised claims. That said, any new claims Petitioner raises in his

reply that he did not raise in his original petition are untimely and subject to dismissal on this

ground. Also, the new claims and new theories in support of previously raised claims that

Petitioner seeks to assert in his reply but did not raise in his appeals to the TCCA are subject to

dismissal under the doctrine of procedural default. Accordingly, the Court will not address these

claims or theories on the merits, and they will be DISMISSED.

1. Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified in 28

U.S.C. § 2241, et seq., provides a one-year statute of limitations for the filing of an application for

a federal writ of habeas corpus. The statute provides:

A 1-year period of limitation shall apply to an application for a writ of habeas

corpus by a person in custody pursuant to the judgment of a State Court. The

limitation period shall run from the latest of—

(A) the date on which the judgment became final by the conclusion of direct

review . . . .

28 U.S.C. § 2244(d)(1).

After a Hamilton County jury rendered a verdict against Petitioner for first-degree murder

[Doc. 15-1, p. 71] and the trial court entered judgment against Petitioner [Id. at 72], Petitioner

appealed that conviction [Doc. 15-20]. The TCCA affirmed the trial court’s judgment [Doc. 15-

22], and on February 15, 2012, the TSC denied review [Doc. 15-25]. Accordingly, the AEDPA

statute of limitations began to run on May 17, 2012, the day after Petitioner’s 90-day window to

request review of his conviction by the United States Supreme Court closed. Clay v. United States,

537 U.S. 522, 524 (2003) (holding that, if no petition for certiorari is filed, the judgment becomes

final upon expiration of the ninety-day period for seeking certiorari review in the Supreme Court).

The AEDPA statute of limitations ran for 238 days until January 11, 2013, when Petitioner

paused it by filing a pro se petition for post-conviction relief [Doc. 15-26 p. 3–66]. Tenn. Sup. Ct.

R. 8, § 2(G). The clock began to run again on September 29, 2022, the day after the Tennessee

Supreme Court denied review of the Tennessee Court of Appeals’ affirmance of the denial of the

post-conviction petition [Doc. 15-39]. The clock then expired on February 3, 2023, which is more

than six months before Petitioner filed his reply on August 25, 2023 [Doc. 22]. And while

Petitioner timely filed his § 2254 petition [Doc. 1] before the AEDPA statute of limitations passing,

this filing did not toll the AEDPA’s statute of limitations. See Duncan v. Walker, 533 U.S. 167,

181–82 (2001).

Accordingly, the new claims in Petitioner’s reply are untimely, and he has not set forth any

reason for the Court to toll the statute of limitations. Thus, the Court will not address those claims

on the merits.

2. Procedural Default

As the Court noted above, to exhaust a claim for relief under § 2254, a petitioner must have

presented “the same claim under the same theory” to the state courts. Pillette, 824 F.2d at 497; see

also Wagner, 581 F.3d at 418. Petitioner, therefore, procedurally defaulted any claims or theories

raised in his reply that were not previously presented to the TCCA. Petitioner’s attempt to attribute

these defaults to appellate counsel fares no better. To the extent Petitioner relies on ineffective

assistance of appellate counsel as cause for failing to raise certain claims or theories on direct

appeal, that claim itself was never presented to the Tennessee Court of Criminal Appeals and is

therefore procedurally defaulted. See Edwards v. Carpenter, 529 U.S. 446, 453 (2000) (providing

that “an ineffective-assistance-of counsel claim asserted as cause for the procedural default of

another claim can itself be procedurally defaulted”).

Accordingly, the claims and theories raised for the first time in Petitioner’s reply are

procedurally defaulted, and the Court will not address these claims or theories on the merits.

C. Due Process

As set forth above, Petitioner alleges that he was denied a fair and impartial trial, in

violation of due process, based on “false evidence and false testimony” presented at his trial. In

support, he points to trial evidence of a .260 bolt action rifle, the lack of any evidence identifying

the murder weapon, and Mr. Haden’s trial testimony [Doc. 1, p. 5]. Respondent argues that

Petitioner did not present a substantively identical claim to the state courts and therefore

procedurally defaulted this claim, noting that Petitioner concedes he did not exhaust it because he

“raised [it] in ineffective assistance of counsel” proceedings rather than as a freestanding due

process claim [Doc. 16, pp. 24–26; Doc. 1, p. 5].

Petitioner’s due process claim based on cumulative errors does not entitle him to relief

under § 2254 for three reasons. First, the claim is not cognizable on federal habeas review.

Second, this claim is procedurally defaulted because it rests on grounds different from those

presented to the TCCA, and Petitioner has not established cause and prejudice to excuse that

default. Third, even if the Court could liberally construe this claim to be the same cumulative error

claim addressed by the TCCA, which it cannot, Petitioner has not established that the TCCA’s

denial of this claim was unreasonable.

First, Petitioner’s due process claim based on cumulative error is not cognizable herein, as

the Supreme Court has never held that “constitutional claims can be cumulated to grant habeas

relief[.]” Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002); Scott v. Elo, 302 F.3d 598, 607

(6th Cir. 2002) (“The Supreme Court has not held that constitutional claims that would not

individually support habeas relief may be cumulated in order to support relief.”).

Second, the cumulative error claim Petitioner raises in his § 2254 petition relies on different

factual and legal grounds than the cumulative error claim he presented to the TCCA in his appeal

from the denial of post-conviction relief. [Compare Doc. 1, p. 5 with Doc. 15-32, p. 89–94]. Thus,

because Petitioner did not present “the same claim under the same theory” to the TCCA, this claim

is procedurally defaulted. Pillette, 824 F.2d at 497; see also Wagner, 581 F.3d at 418.

To the extent Petitioner seeks to blame his appellate attorney for failing to raise the due

process claim he raises in his § 2254 petition to the TCCA in his direct appeal, he again

procedurally defaulted that claim for ineffective assistance of appellate counsel by not exhausting

it with the TCCA. Edwards, 529 U.S. at 453 (providing that “an ineffective-assistance-of counsel

claim asserted as cause for the procedural default of another claim can itself be procedurally

defaulted”). Additionally, to the extent that Petitioner blames his post-conviction appellate

counsel for not raising that ineffective assistance of appellate counsel claim in the appeal of the

denial of his post-conviction petition, such a claim is not cognizable here. Davila v. Davis, 137 S.

Ct. 2058, 2067 (2017) (declining to extend the scope of Martinez to include procedurally defaulted

claims of ineffective assistance of direct appellate counsel due to ineffectiveness of post-

conviction counsel). As a result, Petitioner has not shown cause or prejudice to excuse his

procedural default of this claim.

Finally, even if the Court could very liberally construe the petition to raise the same

cumulative error claim addressed by the TCCA, which it cannot, Petitioner would still not be

entitled to relief. The TCCA denied this claim because Petitioner had not established that any of

the acts of his counsel underlying this claim amounted to ineffective assistance of counsel.

McMillon II, at *14. And Petitioner has not identified, and the Court does not discern, any

unreasonable application of federal law or unreasonable determination of the facts in light of the

evidence presented in the TCCA’s denial of this claim or the TCCA’s denial of the underlying

ineffective assistance of counsel claims.

Petitioner is thus not entitled to relief under § 2254 based on his due process cumulative

error claim.

D. Prosecutorial Misconduct

Petitioner next claims that the prosecution improperly used terms to inflame the jury’s

emotion and encouraged them to convict him to protect the public [Doc. 1, p. 7]. Petitioner raised

this claim to the TCCA in his appeal of the denial of his petition for post-conviction relief, and the

TCCA found that he had waived it by not raising it on direct appeal. McMillon II, at *14. The

TCCA cited Tenn. Code Ann. § 40-30-106(g) to support this ruling. Id. This statutory subpart

provides that “[a] ground for relief is waived if the petitioner personally or through an attorney

failed to present it for determination in any proceeding before a court of competent jurisdiction in

which the ground could have been presented” and sets forth two exceptions to this rule that are not

relevant here. Tenn. Code Ann. § 40-30-106(g).

Tenn. Code Ann. § 40-30-106(g) is a firmly established and regularly enforced independent

rule in Tennessee. See, e.g., Cone v. Bell, 243 F.3d 961, 969 (6th Cir. 2001), overruled on other

grounds by Bell v. Cone, 535 U.S. 685 (2002) (finding Tennessee’s waiver statute to be

independent and adequate state rule that is regularly enforced); Ralph v. Sexton, No. 4:13-CV-53-

HSM-SKL, 2016 WL 4574682, at *10 (E.D. Tenn. Sept. 1, 2016) (finding Tenn. Code Ann. § 40-

30-106(g) “an adequate and independent state ground sufficient to foreclose habeas

review”); Holland v. State, 610 S.W.3d 450, 457–60 (Tenn. 2020) (citing and applying Tenn. Code

Ann. § 40-30-106(g) in reversing the TCCA’s decision to sua sponte raise a claim that the post-

conviction petitioner had failed to raise in earlier proceedings); Stanhope v. State, 2018 WL

1884656 (Tenn. Crim. App. April 19, 2018) (applying Tenn. Code Ann. § 40-30-106(g) to find

that a post-conviction petitioner waived a claim by failing to present it in earlier proceedings and

citing various cases likewise finding that post-conviction petitioners waived claims by not raising

them in earlier proceedings where they could have done so). Accordingly, the record demonstrates

that TCCA based its rejection of this claim on this state law rule that is both independent of the

federal question and adequate to support the judgment, and Petitioner therefore procedurally

defaulted this claim. Walker, 562 U.S. at 315.

In his reply, it appears that Petitioner tries to excuse his default of this claim by asserting

that his appellate counsel was ineffective for not raising it [Doc. 19, p. 16–19]. Once again,

however, Petitioner cannot rely on the ineffective assistance of his appellate counsel to establish

cause to excuse a procedural default in a federal habeas corpus action without first exhausting that

ineffective assistance of appellate counsel claim in the state courts, which he did not do. Edwards,

529 U.S. at 453 (2000) (providing that “an ineffective-assistance-of counsel claim asserted as

cause for the procedural default of another claim can itself be procedurally defaulted”).

Accordingly, this Court will not address this claim on the merits, and Petitioner is not

entitled to § 2254 for this claim.

E. Ineffective Assistance of Counsel

Petitioner next claims that his counsel was ineffective for (1) allowing the prosecution “to

use false evidence,” (2) failing “to object to improper arguments,” and (3) failing to raise

unspecified arguments on appeal that Petitioner asked him to raise [Doc. 1, p. 8].

As for Petitioner’s third claim, which concerns ineffective assistance of appellate counsel,

the record reflects that Petitioner raised no such claim to the TCCA. That claim, therefore, is

procedurally defaulted. Edwards, 529 U.S. at 453. And Martinez does not excuse any failure by

Petitioner’s post-conviction counsel to raise an ineffective assistance of appellate counsel claim.

Davila, 137 S. Ct. at 2067. Petitioner is thus not entitled to relief for this claim under § 2254.

The Court will now address Petitioner’s remaining ineffective assistance of counsel claims,

which it liberally construes alleging that Petitioner’s trial counsel was ineffective with regard to

(1) Mr. Haden’s trial testimony, (2) testimony regarding evidence recovered at Mr. Guillory’s

house, and (3) the prosecution’s statements implicitly referring to gang/war activity. These claims

correspond to those Petitioner raised in his appeal from the denial of his post-conviction petition

[Doc. 15-32].

The Sixth Amendment provides, in pertinent part, that “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const.

amend. VI. This includes the right to “reasonably effective assistance” of counsel. Strickland v.

Washington, 466 U.S. 668, 687 (1984). In Strickland, the Supreme Court set forth a two-pronged

test for evaluating claims of ineffective assistance of counsel:

First, the defendant must show that counsel’s performance was deficient.

This requires showing that counsel made errors so serious that counsel was

not functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable. Unless a defendant makes both showings, it cannot be said

that the conviction . . . resulted from a breakdown in the adversary process

that renders the result unreliable.

Strickland, 466 U.S. at 687. A petitioner has the burden of proving ineffective assistance of his

counsel. Virgin Islands v. Nicholas, 759 F.2d 1073, 1081 (3d Cir. 1985).

In considering the first prong of Strickland, the appropriate measure of attorney

performance is “reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688.

A party asserting an ineffective assistance of counsel claim must “identify the acts or omissions of

counsel that are alleged not to have been the result of reasonable professional judgment.” Id. at

690. The evaluation of the objective reasonableness of counsel’s performance must be made “from

counsel’s perspective at the time of the alleged error and in light of all the circumstances, and the

standard of review is highly deferential.” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).

The second prong of the Strickland test requires a claimant to show counsel’s deficient

performance prejudiced the defense. Thus, “[a]n error by counsel, even if professionally

unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had

no effect on the judgment.” Strickland, 466 U.S. at 691.

The Supreme Court has emphasized that a claimant must establish both prongs of a claim

for ineffective assistance of counsel to meet his burden, and if either prong is not satisfied, the

claim has no merit. Strickland, 466 U.S. at 697. Moreover, a habeas petitioner alleging ineffective

assistance of counsel that he exhausted with the state courts bears a heavy burden, given the

“doubly deferential” review of such a claim under § 2254(d)(1). Knowles v. Mirzayance, 556 U.S.

111, 123 (2009).

Applying these standards, the TCCA correctly articulated and applied Strickland in

rejecting Petitioner’s ineffective-assistance claims. See McMillon II, at *8–14. As for counsel’s

preparation for and cross-examination of Mr. Haden, the TCCA found that Petitioner failed to

present any proof showing how additional preparation would have altered the testimony or that

counsel’s approach was anything but strategic. Id. at *13. Petitioner likewise did not question

trial counsel at the post-conviction hearing about his strategic decisions about that testimony. Id.

As for the evidence recovered from Mr. Guillory’s residence, including a rifle and a mask

that appeared unrelated to the shooting, the TCCA found that Petitioner failed to establish either

deficient performance or prejudice. As to the rifle, Petitioner offered no proof that trial counsel’s

decision not to object was unreasonable or that admission of the evidence prejudiced the defense.

Id. at *10. As to the mask, the TCCA noted that counsel did object to its introduction, despite

counsel not using the specific term “objection,” and therefore Petitioner could not establish

deficient performance. Id. at *11.

Finally, with respect to counsel’s failure to continue objecting to the prosecution’s repeated

use of language implying gang or warfare activity, the TCCA determined that Petitioner again

failed to rebut the presumption that counsel’s conduct was strategic. Trial counsel testified that he

limited further objections out of concern that the jury was becoming annoyed by repeated

interruptions, a judgment falling within the bounds of professional discretion. Id. at *9.

The Court finds that the TCCA correctly set forth and applied the Strickland standard to

the relevant facts of Petitioner’s case. Thus, Petitioner has not shown that the TCCA’s denial of

these claims was an unreasonable application of federal law or an unreasonable determination of

the facts in light of the evidence presented. So Petitioner is not entitled to § 2254 relief for these

claims.

F. Victim’s Son

Petitioner next claims that his trial counsel had a conflict of interest that entitles him to

relief under § 2254 [Doc. 1, p. 10]. Petitioner asserts that (1) his trial counsel previously

represented the victim’s son; (2) the victim’s son’s testimony was exculpatory for Petitioner; and

(3) the victim’s son refused to testify at Petitioner’s trial and threatened to lie about Petitioner’s

involvement in any such trial testimony because of counsel’s prior representation [Id.]. That said,

Petitioner procedurally defaulted this claim, and, in any event, lacks merit.

First, Petitioner procedurally defaulted this claim. Petitioner did not present this

freestanding conflict of interest claim to the TCCA in his direct appeal [Doc. 15-20]. While

Petitioner presented a similar ineffective assistance of counsel claim regarding Mr. Norman to the

TCCA in his appeal of the denial of his post-conviction petition, that claim specifically asserted

that his counsel was ineffective for failing to obtain consent regarding the alleged conflict or

improper interview of the victim’s son in his appeal [Doc. 15-32, p. 51–56]. That theory is

substantively different from the freestanding conflict of interest claim asserted here. Because

Petitioner failed to present “the same claim under the same theory” to the TCCA, this freestanding

conflict of interest claim is procedurally defaulted, and Petitioner has not shown cause or prejudice

to excuse that default.

Regardless of this default, however, this claim also lacks merit. To the extent that

Petitioner asserts that he is entitled to a presumption of prejudice based on counsel’s prior

representation of the victim’s son, this argument is misplaced. Under Cuyler v. Sullivan, 446 U.S.

335 (1980), prejudice is presumed only where counsel “actively represented conflicting interests”

and this “actual conflict of interest adversely affected his lawyer’s performance.” Id. at 345–

50. But the Supreme Court has confined this presumption of prejudice to multiple concurrent

representation of criminal defendants. Mickens v. Taylor, 535 U.S. 162, 166–73 (2002). As

Petitioner has not alleged, much less demonstrated, that his trial counsel concurrently represented

both the victim’s son and Petitioner, this presumption does not apply.

Without concurrent representation, conflict-of-interest claims are evaluated under

Strickland v. Washington. See Leonard v. Warden, 846 F.3d 832, 844 (6th Cir. 2017)

(citing Stewart v. Wolfenbarger, 468 F.3d 338, 350–351 (6th Cir. 2006)). Petitioner has not

established any deficient performance or prejudice under that standard. At the post-conviction

hearing, trial counsel testified that the victim’s son stated that if he were forced to testify at trial,

he would wear a t-shirt with Petitioner’s likeness and gang signs to court [Doc. 15-27, p. 103].

Petitioner’s counsel also testified that it was unclear whether the victim’s son’s testimony would

be favorable or unfavorable to Petitioner [Id.] Under these circumstances, counsel’s decision not

to compel the victim’s son to testify was objectively reasonable. Additionally, Petitioner has not

presented any proof that he suffered prejudice due to the victim’s son not testifying, such as

testimony from the victim’s son about what his trial testimony would have been if he testified.

Petitioner is thus not entitled to relief under § 2254 based on this claim.

IV. CERTIFICATE OF APPEALABILITY

The Court must now consider whether to issue a certificate of appealability (“COA”),

should Petitioner file a notice of appeal. Under 28 U.S.C. § 2253(a) and (c), a petitioner may

appeal a final order in a habeas corpus proceeding only if he is issued a COA, and a court may

issue a COA may only where a Petitioner has made a substantial showing of the denial of a

constitutional right. 28 U.S.C. § 2253(c)(2). When a district court denies a habeas petition on a

procedural basis without reaching the underlying claim, a COA should only issue if “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).

Petitioner has not made a substantial showing that any of his exhausted claims violated his

constitutional rights, and reasonable jurists would not debate the Court’s findings that Petitioner

procedurally defaulted the claims that he did not exhaust with the TCCA or that the new claims in

Petitioner’s reply are untimely. Accordingly, a COA SHALL NOT ISSUE. The Court also

CERTIFIES that any appeal from this action would not be taken in good faith and would be totally

frivolous. Fed. R. App. P. 24.

V. CONCLUSION

For the reasons set forth above, the petition for § 2254 relief will be DENIED, and this

action will be DISMISSED. A COA shall NOT issue.

AN APPROPRIATE JUDGMENT ORDER WILL ENTER.

ENTER:

s/Clifton L. Corker

United States District Judge