Petition for Writ of Certiorari — Mainor Canales, Petitioner v. Tennessee

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IN THE SUPREME COURT OF THE UNITED STATES

MAINOR CELIN AVILEZ CANALES - PETITIONER

Vs.

STATE OF TENNESSEE - RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI TO

TENNESSEE COURT OF CRIMINAL APPEALS

FOR THE EASTERN DIVISION OF TENNESSEE

PETITION FOR WRIT OF CERTIORARI

PRO-SE PETITIONER:

Mainor Celin Avilez Canales

# 00564184

T.C.I.X.

1499 R.W. Moore Memorial Highway

P. O. Box 4050

Only, Tennessee 37140-4050

No Phone

FILED"

FEB 14 2022

QUESTIONS PRESENTED FOR REVIEW

1.

INEFFECTIVE ASSISTANCE OF COUNSEL?

a. COUNSEL DID NOT PROVIDE CONSTITUTIONALLY

EFFECTIVE ASSISTANCE WHEN HE FAILED TO CONDUCT

REASONABLE INVESTIGATION INTO THE FACTS AND

CIRCUMSTANCES SURROUNDING THE CASE PRIOR TO

TAKING THE CASE TO TRIAL AND FAILED TO INTERVIEW,

PREPARE, AND SUBPOENA IMPORTANT FACT AND EXPERT

WITNESSES.

PARTIES

MAINOR CELIN AVILEZ CANALES is inmate number 00564184 in the Tennessee

Department of Corrections at Turney Center Industrial Complex located at 1499 R.W.

Moore Memorial highway, Only, Tennessee 37140-4050, and is the Pro-Se Applicant in

this case.

THE STATE OF TENNESSEE is the Respondent and is represented by RENEE W.

TURNER, who is a Senior Assistant Attorney General in the Criminal Appeals Division

of the Office of the Attorney General and Reporter for the State of Tennessee and whose

mailing address is P. O. Box 20207, Nashville, Tennessee 37202.

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TABLE OF CONTENTS

PARTIES

2

TABLE OF AUTHORITIES.

4

PETITION FOR WRIT OF CERTIORARI

5

JURISDICTION

6

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

7

STATEMENT OF THE CASE

8

REASONS FOR GRANTING THE PETITION

10

Counsel Did Not Provide Constitutionally Effective Assistance When He Failed to

Conduct Reasonable Investigation Into The Facts And Circumstances Surrounding The

Case Prior To Taking The Case To Trial And Failed To Interview, Prepare, And Subpoena

Important Fact And Expert Witnesses........................................................................................... 10

CONCLUSION

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APPENDIX “A”

Mainor Canales v. State of Tennessee, No. E2020-01040-CCA-R3-PC, 2021 WL

3363454 (Tenn.Crim.App. Jun 29, 2021 )perm. app. denied Nov. 17, 2021.

APPENDIX “B”

State of Tennessee v. Mainor Celin Avilez Canales, No. E2017-01222-CCA-R3-CD

(Tenn.Crim.App. Mar. 28, 2018).

APPENDIX “C”

Volume 3 of Trial Transcripts

Pages 299-309

TABLE OF AUTHORITIES

Cases

Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972)

10

Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975)

12

Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)

10

Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)

10

Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932)

10

Ramonez v. Berghuis, 490 F.3d 482 (6th Cir. 2007)

12

State v. Black, 794 S.W.2d 752 (Tenn. Crim. App. 1990)

14

State v. Mainor Celin Avilez Canales, E2017-01222-CCA-R3-CD, 2018 WL 2084957

(Tenn. Crim. App. May 4, 2018)................................................................................ 14

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)....10, 11,

12

Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156L.Ed.2d 471 (2003)

11, 12

Constitutional Provisions

article I, section 9 of the Tennessee Constitution

Sixth Amendment to the United States Constitution

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7, 10, 12

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgments below.

The opinion of the highest state court to review the merits appears at Appendix

“A” to the petition and is unpublished at Mainor Canales v. State of Tennessee,

No. E2020-01040-CCA-R3-PC, 2021 WL 3363454, (Term. Crim. App. Aug. 3,

2021), permission to appeal denied by the Tennessee Supreme Court on

November 17, 2021.

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JURISDICTION

The date on which the highest state court decided my case was August 3, 2021. A

copy of that decision appears at Appendix “A”.

A timely application for permission to appeal to the Tennessee Supreme Court

was thereafter denied on the 17,h day of November, 2021, and a copy of the order

denying rehearing appears at Appendix “B”

The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a):

Final judgments or decrees rendered by the highest court of a State in which a

decision could be had, may be reviewed by the Supreme Court by writ of

certiorari where the validity of a treaty or statute of the United States is drawn

in question or where the validity of a statute of any State is drawn in question

on the ground of its being repugnant to the Constitution, treaties, or laws of the

United States, or where any title, right, privilege, or immunity is specially set

up or claimed under the Constitution or the treaties or statutes of, or any

commission held or authority exercised under, the United States.

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution provides as follows:

No person shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in actual service in time of War or

public danger; nor shall any person be subject for the same offence to be twice put

in jeopardy of life or limb; nor shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for public use, without just

compensation.

The Sixth Amendment to the United States Constitution provides as follows:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district wherein the crime shall

have been committed, which district shall have been previously ascertained by

law, and to be informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the Assistance of Counsel for his

defense.

The Fourteenth Amendment to the United States Constitution provides as follows:

Section 1. All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.

Art. I, § 9 of the Constitution of the State of Tennessee provides as follows:

That in all criminal prosecutions, the accused hath the right to be heard by himself

and his counsel; to demand the nature and cause of the accusation against him,

and to have a copy thereof, to meet the witnesses face to face, to have compulsory

process for obtaining witnesses in his favor, and in prosecutions by indictment or

presentment, a speedy public trial, by an impartial jury of the County in which the

crime shall have been committed, and shall not be compelled to give evidence

against himself.

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STATEMENT OF THE CASE

Appellant Mainor Celin Avilez Canales was charged with aggravated rape after

he was seen carrying the semiconscious victim across the parking lot of a bar. The

victim, who was severely intoxicated at the time, could not recall the particulars of the

incident. At trial, the Appellant asserted that he did not have intercourse with the victim

and that her injuries were the result of a fall.

At trial, the victim testified that when she went outside to smoke, she and the

appellant were the only two people outside, and the Appellant was touching her and “kept

... trying to get me to have sex with him.” The victim testified that she grew frustrated

and replied, “No, because you’re nothing more than a dirty f***ing Mexican.” She stated

that she assumed the Defendant would leave her alone and she turned to continue

smoking her cigarette. She next remembered “spitting out the cherry on my cigarette

because it had got knocked into my mouth partially.” The victim testified that she had

two burns on her lip, and she was “not 100% sure if he hit me or hit me with something.”

The victim recalled begging the Defendant to leave her alone, apologizing, and offering

to pay him for the drinks. She next remembered lying on her back with the Appellant

above her and could recall nothing further regarding the assault.

The victim acknowledged that in all her prior statements and in her testimony at

the preliminary hearing, she had stated that she remembered nothing between going

outside to smoke and waking up in the hospital. The victim explained that she tried very

hard to remember the assault and had spoken to witnesses from the bar to that end. In

May or June 2014, she recalled the additional snippets to which she had testified. She did

not inform the prosecution or anyone else about the information she had recalled until the

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day before trial because she did not think it would be useful until trial.

The Appellant testified through an interpreter that the victim went outside the bar

with him and that she asked him three times to have sex. He stated that they never had

sex but that the victim tripped and fell. He said that the fall injured the victim and that he

had to carry her back to the bar. The jury convicted Appellant of the lesser-included

offense of aggravated sexual battery, for which the trial court imposed a twelve-year

sentence.

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REASONS FOR GRANTING THE PETITION

A.

Counsel Did Not Provide Constitutionally Effective

Assistance When He Failed To Conduct Reasonable

Investigation Into The Facts And Circumstances

Surrounding The Case Prior To Taking The Case To Trial

And Failed To Interview, Prepare, And Subpoena

Important Fact And Expert Witnesses.

In a long line of cases that includes Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55,

77 L.Ed. 158 (1932), Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461

(1938), and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the

Supreme Court of the United States has recognized that the Sixth Amendment right to

counsel exists, and is needed, in order to protect the fundamental right to a fair trial.

Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674

(1984). Because of the vital importance of counsel's assistance, the Supreme Court has

held that, with certain exceptions, a person accused of a federal or state crime has the

right to have counsel appointed if retained counsel cannot be obtained.

Id.; See

Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v.

Wainwright, supra; Johnson v. Zerbst, supra. That a person who happens to be a lawyer

is present at trial alongside the accused, however, is not enough to satisfy the

constitutional command. Id. The Sixth Amendment recognizes the right to the assistance

of counsel because it envisions counsel’s playing a role that is critical to the ability of the

adversarial system to produce just results. Id. An accused is entitled to be assisted by an

attorney, whether retained or appointed, who plays the role necessary to ensure that the

trial is fair. Id.

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The established legal principles that govern claims of ineffective assistance of

counsel are found in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471

(2003). An ineffective assistance claim has two components:

A petitioner must show that counsel's performance was deficient, and that

the deficiency prejudiced the defense. To establish deficient performance, a

petitioner must demonstrate that counsel's representation “fell below an

objective standard of reasonableness.” We have declined to articulate specific

guidelines for appropriate attorney conduct and instead have emphasized that

“[t]he proper measure of attorney performance remains simply reasonableness

under prevailing professional norms.”

Wiggins v. Smith, 539 U.S. at 521, 123 S.Ct. 2527, quoting Strickland v. Washington, 466

U.S. at 687-688, 104 S.Ct. 2052.

Constitutional competence is not a high bar for an attorney to reach. The question

is whether the representation “fell below an objective standard of reasonableness.”

Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) In

determining whether a performance was reasonable, courts give a healthy amount of

deference to

counsel’s tactical

and

litigation

decisions;

they

are

“virtually

unchallengeable” in the ordinary case. Id. at 690, 104 S.Ct. 2052. But this deference to

strategic choices has always been tempered by a requirement that the choices themselves

be informed: “strategic choices made after less than complete investigation are

reasonable precisely to the extent that reasonable professional judgments support the

limitation of investigation.” Id. at 691, 104 S.Ct. 2052. Accordingly, “a particular

decision not to investigate must be directly assessed for reasonableness.” Ibid. The Sixth

Circuit Court of Appeals has expressed this principle with more color: “the investigation

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leading to the choice of a so-called trial strategy must itself have been reasonably

conducted lest the ‘strategic’ choice erected upon it rest on a rotten foundation.”

Ramonez v. Berghuis, 490 F.3d 482, 488 (6th Cir. 2007).

Strickland defined the deference owed strategic tactical judgments in terms of

adequacy of the investigations supporting those judgments:

“[Strategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable; and strategic choices

made after less than complete investigation are reasonable precisely to the extent

that reasonable professional judgments support the limitations on investigation.

In other words, counsel has a duty to make reasonable investigations or to make

a reasonable decision that makes particular investigations unnecessary. In any

ineffectiveness case, a particular decision not to investigate must be directly

assessed for reasonableness in all the circumstances, applying a heavy measure

of deference to counsel's judgments.”

Wiggins v. Smith, 539 U.S. at 521-522, 123 S.Ct. 2527; quoting Strickland v. Washington,

466 U.S. at 690-691, 104 S.Ct. 2052.

Both the Sixth Amendment to the United States Constitution and article I, section

9 of the Tennessee Constitution guarantee a criminally accused the right to representation

by counsel. Additionally, both the United States Supreme Court and this Court have

recognized that the right to such representation encompasses the right to “reasonably

effective” assistance, that is, assistance “within the range of competence demanded of

attorneys in criminal cases.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984); see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975).

A claim of ineffective assistance of counsel is a claim cognizable under

Tennessee’s Post-Conviction Act. See Tenn.Code Ann. §§ 40-30-101 to -313 (2020). A

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petitioner for post-conviction relief has “the burden of proving the allegations of fact by

clear and convincing evidence.” Id. § 40-30-110(f).

In this case petitioner’s claim stems from retained counsel’s failure to investigate

and timely disclose an expert witness to the Court and the State; as a result, the State

objected and the witness was not allowed to testify as an expert, instead “she could testify

from her knowledge and her experience having dealt with that particular issue.” (T. Vol.

I, p. 44).1 Had the late called witness been qualified as an expert, her testimony could

have been afforded more weight by the jury resulting in a different trial outcome.

Mr. Canales’ petition alleged that:

“No deference should be afforded on the grounds that his attorney’s latent

disclosure of a potential expert witness was a tactical or strategic decision. In

light of the facts and circumstances of the instant case, when viewed as a whole,

the failure to timely disclose this witness to afford an opportunity to testify in an

expert capacity demonstrates failure to adequately investigate defense options

and failure to adequately prepare for trial.”

{Amended Petition for Post Conviction Relief, pg. 5).

A bench conference discussion and ruling on medical testimony of Defense

Witness Tracy Lynn Sisto was held on March 11, 2016, after the close of the State’s

proof. (T. Vol. Ill, pp. 299-303) The State made an objection because of the lateness of

the disclosure on her. (T. Vol. Ill, pp. 300). The Court ruled that:

“I’ll not let her testify as an expert. She wasn’t disclosed. If she’s a nurse,

she may testify about her experience. ... But I will not permit her to testify as an

expert since that was ... And that should have been disclosed clearly.”

(T. Vol. Ill, pp. 300).

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There is no conceivable tactical advantage for failing to timely disclose an expert

witness. Counsel’s failure to investigate and timely disclose an expert witness to the

Court and State, fell short of the requisite “prevailing professional norms” standard to

support a claim of ineffective assistance of counsel.

The appellate court relied upon Stale v. Black, 794 S.W.2d 752 (Term. Crim. App.

1990), which, in essence, states:

“When a petitioner contends that trial counsel failed to discover, interview, or

present witnesses in support of his defense, these witnesses should have been

presented by the petitioner at the evidentiary hearing. As a general rule, this is

the only way the petitioner can establish [prejudice].”

State v. Black, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) {emphasis added).

However, Tracy Lynn Sisto testified at the Petitioner’s criminal trial as a lay witness and

her testimony is a matter of record. Slip Opinion, page 3-4; State v. Mainor Celin Avilez

Canales, E2017-01222-CCA-R3-CD, 2018 WL 2084957, *4 (Tenn. Crim. App. May 4,

2018). Ms. Sislo’s testimony likely resulted in the Petitioner being convicted of the

lesser included offense of aggravated sexual battery as opposed to the indicted offense of

aggravated rape.

Had Ms. Sisto been presented as an “expert” witness there is a

reasonable probability that the standing of “expert” would have swayed the jury to acquit

the Petitioner of the lesser included offense as well.

CONCLUSION

Counsel’s failure to timely disclose a key expert witness in a timely manner

cannot be assessed as reasonable under any circumstances. In light of the facts and

1 Transcripts from the Criminal Trial will be referenced as “T.” followed by the Volume (Vol.) and page (p)

number).

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circumstances of the instant case, when viewed as a whole, the failure to timely disclose

this witness to afford an opportunity to testily in an expert capacity demonstrates failure

to adequately investigate defense options and failure to adequately prepare for trial.

The petition for a writ of certiorari should be granted.

Respectfully submitted,

NW\oy CAu\

(j-cx^AcS

Mainor Celin Avilez Canales

# 00564184

T.C.I.X.

1499 R.W. Moore Memorial Highway

Only, Tennessee 37140-4050

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