Petition for Writ of Certiorari — Michael John Stitts, Petitioner v. Brian Eller, Warden

Supreme Court briefDec 11, 2024

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Originating Case No: l:20-CU-01281-STA-jay

Supreme Court, U.S.

FILED

IN THE UNITED STATES SUPREME COURT

DEC 1 1 2024

OFFICE OF THE CLERK-

Michael John Stitts

Petitioner

}

Brian Eller

Warden

}

On Petition for a Writ of Certiorari to the Sixth Circuit Court of Appeals

PETITION FOR WRIT OF CERTIORARI

Michael John Stitts

Northeast Correctional Complex

5249 Hwy 67 W

Mountain City, TN 37683-5000

Pro Se Applicant

RECEIVED

APR - 8 2025

OFFICE OF THE CLERK

SUPREME COURT, U.S.

*-V

*i QUESTION PRESENTED

1) Whether the Sixth Circuit Court of Appeals erred when it held

Appellant had waived his Double-Jeopardy claim that was premised

on the illegal multiplicity of punishments for the same offense?

2) Whether the Sixth Circuit Court of Appeals holding that, Martinez

no longer excuses procedural defaults for Post-Conviction Counsel’s

failure to raise Ineffective Assistance of Trial Counsel is contrary to

existing Supreme Court Precedent?

*ii TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

INDEX TO APPENDICES

11-1V

TABLE OF AUTHORITIES

1V-V

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS

REASON FOR GRANTING WRIT OF CERTIORARI

Vll, IX

STATEMENT OF THE CASE

1-2

ARGUMENT

3-25

DECISION IN CONFLICT WITH OTHER CIRCUITS..... 15-17

INDEX TO APPENDICES

There are three parts to the Appendices presented to this court in support of his

petition for a Writ of Certiorari. Each part is color coded and numerically identified

by page number in the bottom right hand corner as required by Rule 14(i).

Part A, contains the Orders and Memorandums of the State and Federal

Courts which has denied relief.

Part B, contains relevant pages from the State and Federal Court filings of petitioner

Part C, contains relevant pages from the State Court record concerning the double

jeopardy argument presented.

Petitioner will point to the facts supported by the State and Federal Court Record,

and reproduced for this court in the following fashion:

(App. A. Pg ID# A-20), i.e., this citation is found in Appendix A, located at the

handwritten number shown in the bottom right hand corner A-20. Each fact relevant

to petitioner’s argument in the Writ of Certiorari is referred to in this manner.

APPENDIX A: (Blue Cover)

Court Briefs and Memorandum Opinions

Part A:l= March 4, 2024, Federal District Court, Western Division at

Jackson, Tennessee, Denial of habeas Corpus Relief,

Reported at 2023 WL 2699973

(APP. A, Part A:5, Pgs A 9-44)

Part A:2= September 14, 202tf, Sixth Circuit Court of Appeals Denial of Certificate

of Appealability.

(APP. A, Part A:2, Pgs A 1-8)

Part A:3= May 13, 2019, Evidentiary Hearing on Post-Conviction Relief

(APP. A, Part A:3, Pgs 45-52)

APPENDIX B: (Purple Cover)

MOTIONS, BRIEFS AND PETITIONS FILED BY PETITIONER

Part B:l= April 18, 2024, Appeal from Denial of Habeas Corpus and Request for

COA.

(APP. B. Part B:l, Pgs B 1-17)

Part B:2= February 2, 2017, Original Post-Conviction Petition filed in Madison iii

County Tennessee Circuit Court.

(APP. B. Part B:2, Pgs B 18-34)

APPENDIX C: (Orange Cover)

RELEVANT DOUBLE-JEOPARDY DOCUMENTS

Part C:l= September 19, 2016, Reading of Indictment

(APP. C, Part C:l, Pgs C 1-6)

Part C:2= September 20, 2016, Preliminary Jury Charge

(APP. C, Part C:2, Pgs C 7-22)

Part ^3= September 20, 2016, Jury Charge

(APP. C, Part C:3, Pgs C 23-47)

TABLE OF AUTHORITIES

CASES

Pg#

Albernaz, 450 U.S. at 344, 101 S. Ct. 1137.

State v Allison. 618 S.W. 3d 24, 43 (Tenn. 2021)

Ball v United States 470 U.S. 856. 105 S. Ct. 1668

State v Berry. 503 S.W. 3d 360. 362 (Tenn. 2015)........

Blackledse v Perry. 417 U.S. 21. 94 S. Ct. 2098 (1974)

Blockburger v United States. 284 U.S. 299, 304. 52 S. Ct. 180 (1932). 4

Broce, 488 U.S. at 575. 109 S. Ct. 757

Brown v Ohio. 432 U.S. 161. 168-69. 97 S. Ct. 22210977)

Cauthern v State 145 S.W. 3d 571, 600 (Tenn. 2004)

State v Cook 2010 WL 1293785........................................

State v Denton. 938 S.W. 2d 373 (Tenn. 1996).............................

State v Faulkner 154 S.W. 3d 48, 58 (Tenn. 2005).....................

U.S. v Garcia-Valenzuela, 232 F. 3d 1003, n. 2 (9th Cir. 2000)

United States v Gibbons 994 F. 2d 299, 301 (6th Cir. 1993)

United States v Grant 114 F. 3d 323. 329 (1st Cir. 19971....

State v Hawkins 406 S.W. 3d 121, 129 (Tenn. 2013).........................

In re Winship 397 U.S. 358. 364. 90 S. Ct. 1068 (1970).....................

United States v Kaiser, 893 F. 2d 1300-1302 n. 2 (11th Cir. 1990)

Lannelli v United States, 420 U.S. 770, 785 n. 17. (1975).....

State v Lewis 958 S.W. 2d 736. 738 (Tenn. 1997).....................

Menna v New York. 423 U.S. 61. 96 S. Ct. 241 (1975)............

Neder v United States. 527 U.S. 1. 8. 119 S. Ct. 1827 (1999)

United States v Ragland, 3 Fed. App’x 279, 284 n. 3 (6th Cir. 2001).. 20

Rutledge v United States 517 U.S. 292. 297. 116 S. Ct. 1241, (1996).. 19

Sandstrom v Montana 442 U.S. 510, 520, 99 S. Ct. 2450(1979)

Sellers v Morris. 840 F. 2d 352 (6th Cir. 1988).....

State v Smith 436 S.W. 3d 751. 766 (Tenn. 2014)

United States v Smith 532 F. 3d 1125 (11th Cir. 2008)

Sullivan 508 U.S. at 281, 113 S. Ct. 2078........

U.S. v Tarwater 308 F. 3d 494 (6th Cir. 2002)

Watkins 362 S.W. 3d at 543)................................

STATUTES AND RULES:

T.C.A. § 39-11-106................

T.C.A. § 39-12-101................

T.C.A. § 39-13-101................

T.C.A. § 39-13-102..... ..........

T.C.A. § 39-13-202................

Tenn.R.App.P. Rule 36(b)

28U.S.C. § 2106.....................

U.S.C. 2254(d)(1)...................

U.S.C. § 2254(d)(2)..............

28 U.S.C. § 2254(e)(1)..........

OTHER:

Fifth Amendment

Sixth Amendment

Fourteenth Amendment

*1 OPINIONS BELOW

The denial of relief for the Federal District Court. Western Division, Jackson,

Tennessee, is found at (App. A, Pg ID# A 9-44), and is unreported. United States

Court of Appeals for the Sixth Circuit denial of COA unpublished opinion, is found at

(App. A, Pg ID# 1-8A),

JURISDICTION

The Sixth Circuit Court of Appeals denied a COA on September 17, 202 ty, and is

unpublished. The jurisdiction of the court is invoked under 28 U.S.C. § 2106.

CONSTITUTIONAL AND STATUTORY PROVISIONS

This case involves the Fifth Amendment, which provides in relevant part: no

person shall be subject for the same offence to be twice put in jeopardy of life or limb

Sixth Amendment, which provides in relevant part:

In all criminal prosecutions, the accused shall enjoy the right...to have the

Assistance of Counsel for his defense; and,

Fourteenth Amendment, which provides in relevant part:

Nor shall any State deprive any person of life, liberty, or property, without the due

process of law.

28 U.S.C. § 2106 which provides:

The Supreme Court or any other court of appellate jurisdiction

may affirm, modify, vacate, set aside or reverse any judgment,

decree, or Order of a court lawfully brought before it for review,

and may remand the cause and direct the entry of such approprivate judgment, decree, or Order, or require such further

. proceedings to be had as may be just under the circumstances.

REASON FOR GRANTING WRIT

Under U.S. Supreme Court Rule 10. Considerations Governing Review of

Certiorari, this instant case should qualify for this court’s review because, both the

State and Federal Appellate Courts have issued opinions that are contrary to existing

U.S. Supreme Court precedent in the case of Mathis v United States, 579 U.S. 500,

136 S. Ct. 2243 (2016). The opinion of the Sixth Circuit. Court of appeals is also in

conflict with the decisions of other United States Courts of Appeal on the same

important matter. To wit: Whether an improper jury instruction lowered the State’s

‘beyond a reasonable doubt’ standard, which in turn, denied Petitioner his Sixth

Amendment right to a fair trial and his Fourteenth Amendment right to the due

process of law.

In Tennessee, a criminal has “a constitutional right to complete and accurate jury

instructions on the law, and the trial court’s failure to provide complete and accurate

jury instructions deprives a defendant of the constitutional right to a jury trial.”

State v Cole-Push. 588 S.VF. 3d 254. 260 (Term. 2019). “An instruction is

‘prejudicially erroneous, when read as a whole, fails to fairly submit the legal issues

or misleads the jury as to the applicable law. State v Perrier, 536 S. W. 3d 388. 403

(Tenn. 2017). Petitioner shows this court that the jury was instructed on the

elements of Simple Assault, yet the charge in the indictment was Aggravated Assault.

Therefore, the State reduced its burden of proving “beyond a reasonable doubt” that

an Aggravated assault occurred, but the court allowed him to be convicted of

aggravated Assault based on the Simple assault jury instructions. Petitioner lays out

in great detail the relevant statutes and how the ‘plain error’ occurred in his trial on

pages 17-19 of this brief.

The Sixth Circuit Court of Appeals has also entered a decision in conflict with the

decision of other United States Court of Appeals on the same important matter; that

being, whether Petitioner was denied his constitutional right to a fair trial and the

due process of law when the jury was allowed to convict him of aggravated assault

Vll

based on the jury instructions provided to them on the elements of simple assault.

In the case of Chelley v New York. 475 F. Sudd. 3d 168 (2nd Cir. 2020), that

court held, “Where an error in the jury instruction is alleged, it must be established

not merely that the instruction is undesirable, erroneous, or even ‘universally

condemned,’ but that it violated some right which was guaranteed to the defendant

by the fourteenth Amendment.” (quoting Davis v Strack, 270 F. 3d 111, 123 (2nd

Cir. 2011). Accordingly, while a federal court “may not grant habeas relief for a ‘mere

error of state law’ a finding that Petitioner was erroneously deprived of a jury

instruction to which he was entitled under state law is the first step in the

determination whether that error violated the Petitioner’s federal due process rights.”

See also the similarly situated case of United States v Simmons. 11 F. 4th 239

(4th Cir. 2021), where that appellate court found that the state had correctly charged

the defendant in the indictment with one of the two state law predicates supporting

the assault count, but incorrectly referenced the wrong predicate offense in the jury

instructions. This is exactly the error that occurred in this instant case. The fourth

Circuit went on to hold, “These errors permeated the court’s final jury instructions

on all of the assault counts. The court incorrectly explained and referenced the wrong

section as to the state law predicate, instead of the actual predicate charged in the

indictment. Neither the Defendants or the Government brought this mistake to the

attention of the court. Because Defendant’s did not object to the trial court’s faulty

instructions on the assault counts, we can only review for plain error.”

The court went on to opine, “It appears that a clear and obvious error occurred

here. Olano. 507 U.S. at 734, 113 S. Ct. 1770. The court shouldnot have instructed

the jury on Va. Code Ann. § 18.2-53 which proscribes a different criminal offense than

the one charged in the section 18.2-53.1. By instructing the jury on the proper section,

the jury instructions broadened the possible basis for a conviction. Without a special

jury verdict form we cannot know whether the jury convicted the defendant on the

properly indicted or the improperly instructed offense. We are constrained to find

that a constructive amendment occurred and that defendant’s convictions on the

viii

assault count must be reversed on plain error review.

The Fifth Amendment’s Grand Jury Clause guarantees that a criminal defendant

will be tried only on the charges in a grand jury indictment, so, only the grand jury

may broaden or alter, the charges in the indictment. As this court has previously

explained, “courts cannot permit a defendant to be tried on charges that are not in

the indictment against him.” Stirone v United States, 361 U.S. 212, 217. 80 S. Ct.

270 (1960). Thus the resulting incongruity between the indictment and the conviction

that a constructive amendment causes, “destroys the defendants substantial right to

be tried only on the charges presented in the indictment.” Id. By allowing the jury to

convict Petitioner in this instant case on the uncharged allegations of simple assault,

then allowing the sentence court to sentence him on the higher crime of aggravated

assault interfered with the basic protections the grand jury was designed to afford

have been defeated. Because the possibility of allowing the state to lower its ‘beyond

a reasonable doubt’ standard in convicting the defendant of an unindicted crime

affects the fairness, integrity, and public reputation of federal judicial proceedings in

a manner that is most serious, Petitioner requests this honorable to grant Certiorari

in this case for a plain error review of the complained of constitutional error that

violated his Sixth and Fourteenth Amendment rights under the U.S. constitution.

1 ‘

STATEMENT OF THE CASE

On April 6, 2015, Mary Ann Greer was shot once in the chest and once in the arm

by someone who entered her home brandishing a shotgun. She underwent multiple

surgeries and eventually had to have her arm amputated due to the extent of the

injuries. She testified at trial that she had a stroke shortly after the shooting incident

and could not recall the facts of what happened on the morning of April 6, 2015. She

did testify that her and the defendant had a relationship for several years before the

shooting occurred, and identified him as the perpetrator of the crime at trial.

The defendant has claimed since the day of his arrest that he was involuntarily

intoxicated by a friend prior to the crime he allegedly committed. Officers confirmed

that he was acting like he was under the influence of something prior to his interview

at the police station; some said he was playing possum, while others put off the

interview until the following day due to the possibility of his intoxication. He was

never administered a drug test to verify whether he was under the influence of any

drugs or not.

While there is extensive video footage from multiple officer’s vehicle and body

cams during the initial arrest, there is no footage showing officers pulling 23 shotgun

shells out of the front pocket of the defendant, as testified to at trial. Amazingly, there

is also testimony that a shotgun was found near to the defendant, who was passed

put in the neighbors backyard when first responders arrived. A forensic examination

was performed for DNA on the alleged weapon used to commit the attempted murder

of Mary Ann Greer. However, the contamination evidence was never tested for

fingerprints to know who handled or fired the weapon.

While Ms. Greer testified that she was shot once through the door of the bathroom

she was hiding in, and once through a bedroom door, two important questions of fact

have never been answered by any experts, or laymen for that matter, as to why, 1)

there was only one drop of blood in the bathroom, and 2) how she saw the defendant

pull the trigger on the gun that wounded her.

' *

■*

The arresting officer testified that he saw no blood on the clothes of the defendant,

which is reasonable considering the victim said she was shot from the other side of a

door by a perpetrator she did not see but knew it was the defendant. However, the

same clothing presented at trial was covered in blood and the crime scene investigator

testified that he did not pick up the defendant’s clothing. On cross examination, the

investigating officer recanted his testimony when confronted with a document

showing he did in fact receive the clothing from the county jail. He then stopped by

the crime scene before dropping them off for a DNA forensic analysis. There was now

large amounts of blood on the clothing, most of which was in places that it should not

have been.

Petitioner was subsequently indicted by a Madison County, Tennessee Grand

Jury, for Attempted First Degree Murder, stating, “In Count 1, Michael John Stitts

did unlawfully, knowingly, intentionally and with premeditation attempt to kill Mary

Ann Greer by taking the following substantial step, to wit, shooting the said Mary

Ann Greer, and where the said Mary Ann Greer suffered serious bodily injury as

defined in T.C.A. § 39-11-106 in violation of T.C.A. § 39-13-202 and T.C.A. § 39-12101.”

They went on to hold, “On Count 2: Michael John Stitts did intentionally and

knowingly cause bodily injury to Mary Ann Greer by the use of a deadly weapon, to

wit, a gun, a more particular description of which to Grand Jurors aforesaid is

unknown, in violation of T.C.A. § 39-13-102.” See (APP. C, Pg ID# 78). The jury was

instructed by the court using this same language, thus, causing the ‘plain error’

complained of because “serious bodily injury” was listed in the elements necessary to

convict defendant for Criminal Attempt to Commit First-Degree Murder, in the jury

instructions. (See (APP. A, Pg ID# 27)

The statute for Aggravated Assault, T.C.A. § 39-13-102, expressly states in § (a)

(1), a person commits Aggravated Assault who: (A) intentionally or knowingly

commits an assault as defined in § 39-13-101 and the assault: (i) Results in the

serious bodily injury to another. Yet only ‘bodily injury’ was instructed. (APP. A,

Pg ID# 38)

ARGUMENT

1: AN ACCUSED HAS A CONSTITUTIONAL RIGHT TO A FAIR TRIAL

“An accused has a constitutional right to complete and accurate jury instructions

on the law, and the trial court’s failure to provide complete and accurate jury

instructions deprives a defendant of the constitutional right to a jury trial.”

Cauthern u State. 145 S.VF. 3d 57L 600 (Term. 2004). “In criminal cases, trial

courts the duty, without request, to give proper jury instructions as to the law

governing the issues raised by the nature of the proceeding and the evidence

introduced at trial.” State v Hawkins. 406 S.VF. 3d 121. 129 (Term. 2013). See also

State v Faulkner. 154 S.VE 3d 48. 58 (Tenn. 2005), “An instruction should be

considered prejudicially erroneous when the jury charge, read as a whole, fails to

fairly submit the legal issues or misleads the jury as to the applicable law.”

In this instant case, Petitioner was convicted in Count 1 of attempted first degree

murder, and Count 2 of aggravated assault, and Count 3 of aggravated burglary,

and Count 4 of employing a firearm' during the commission of a dangerous felony.

His claim is that the indictment in this case clearly alleged he committed attempted

first-degree murder causing serious bodily injury by using a gun in the act; it also

found that he committed aggravated assault on the same victim, at the same time,

with the same gun, and caused the same serious bodily injury. Thereby, using the

Blockburger Test, receiving two different sentences and running them consecutively

to one another violates his Constitutional Fifth Amendment right under the DoubleJeopardy Clause.

The State of Tennessee concedes in State v Cook, 2010 WL 1293785 that his

argument has merit, “It is apparent that the state relied on the same evidence to

support defendant’s convictions. His shooting of the victim and the victim sustaining

gunshot wounds supported both the attempted murder conviction and the aggravated

assault conviction, which violates Double-Jeopardy principles.” The exact wording in

the indictment is shown above and at (APP. C, Pg ID# 76-78)

%•

In United States v Gibbons, 994 F. 2d 299, 301 (6th Cir. 1993), the Sixth

Circuit Court of Appeals held, “The Double-Jeopardy Clause of the Fifth Amendment

to the United States Constitution guarantees that no person shall be subject for the

same offence to be twice put in jeopardy of life or limb. Because the Clause’s focus is

on the statutory offenses for which a defendant is prosecuted, the general test for

compliance with the double-jeopardy clause looks to whether each statute requires

proof of a fact the other does not.” Quoting Blockburger v United States, 284 U.S.

299. 304. 52 S. Ct. 180 (1932).

TRIAL COURT ERRED BY FAILING TO CONDUCT PLAIN ERROR REVIEW

It is well settled in Tennessee that, under certain circumstances, two convictions

or dual guilty verdicts must merge into a single conviction to avoid double-jeopardy

implications. See State v Berry. 503 S.W. 3d 360. 362 (Term. 2015). “Whether

multiple convictions violate double-jeopardy is a mixed question of law and fact that

is reviewed de novo with no presumption of correctness. State v Smith. 436 S.W. 3d

751. 766 (Tenn. 2014). The Tennessee Supreme Court has observed, “in single

prosecutions, multiple punishment challenges ordinarily fall into one of two

categories: unit prosecution claims and multiple description claims.” State v Allison.

618 S.W. 3d 24. 43 (Tenn. 2021) (Citing Watkins. 362 S.W. 3d at 543). This case

presents a multiple description claim, which arises when a defendant has been

convicted of violating two different statutes.

In 1996, Tennessee developed the four-part same evidence test in State v

Denton. 938 S.W. 2d 373 (Tenn. 1996), that it relied on analyze Double-Jeopardy

claims. However, in 2012, the Tennessee Supreme Court specifically abandoned the

Denton analysis in favor of the Blockburger same elements test. Watkins 362 S.W.

3d at 556 (Tenn. 2012). This gave rise to the two-pronged Blockburger test for

multiple description claims such as presented here. The first step of the Blockburger

test is the threshold question of whether convictions arise from the same act or

transaction. Id.

• f.

(

; •

If the threshold is surpassed, meaning the convictions arise from the same

act or transaction, the second step of the Blockburger test requires courts

to examine the statutory elements of the offenses. If the elements of the

offenses are the same, or one offense is a lesser included of the other, then

the court will presume that multiple convictions are not intended by the

General Assembly, and that multiple convictions violate the double jeopardy.

It is well established that Petitioner was convicted of both Attempt to Commit

First Degree Premeditated Murder Which Caused Serious Bodily Injury, and

Aggravated Assault, when the evidence proved that he committed both of these

crimes on the morning of April 6, 2016, when he shot Mary Ann Greer with a gun.

A: THE JURY INSTRUCTIONS MISLED THE JURY

In this case, Petitioner contends that the State of Tennessee put him twice in

jeopardy for the same crime when they prosecuted him for Criminal Attempt of FirstDegree Murder Where the Victim Suffers Serious Bodily Injury, and Aggravated

Assault, because both offenses have a knowing and intentional mens rea element,

and both have a serious bodily injury element, (APP. C, Pg ID# 58) (APP. C, Pg

ID# 60) Then, Aggravated Assault does not have a ‘bodily injury’ element, yet they

were instructed that they must find that Petitioner knowingly and intentionally

attempted to commit the crime of First-Degree Murder, and that ‘bodily injury’ had

to have occurred to convict on that charge in the indictment. To be clear, the statutory

definition in the Aggravated Assault statute, as required by the Tennessee

Legislature is “serious bodily injury’, not simply ‘bodily injury’ as required in the

lesser included offense of Assault. (APP. C, Pg ID# 38)

The Tenn. Code Ann. § 39-13-202: First Degree Murder statute has been

provided to this court at (APP. C, Pg ID# 56-57), showing in element (a)(3) “A killing

of another committed as a result of the unlawful throwing, placing or discharging of

a destructive device or bomb.” This element constitutes the use of a gun as charged

in the indictment. (ADD. C, Pg ID# 56 at *(a)(3). Tenn. Code Ann. § 39-13-102:

Aggravated Assault, is also provided to this court at (Id. Pg ID# 60-65) showing

• :

at § (a)(1)(A) the statute contains the intentionally and knowingly element, and at §

(a)(l)(A)(i) the statute contains the ‘serious bodily injury’ element as charged in the

indictment,, and (a)(l)(A)(ii) contains the use or display of a deadly weapon as

charged in the indictment. See (APP. C, Pg ID# 58-60). This is where the problem

complained of is manifested.

The Jury Instructions clearly show the jury was misled when those instructions 1

were not properly presented to reflect the law and elements necessary to convict. As

a matter of fact, in Count 2, the law and elements presented and the verdict of the

jury only convicted Petitioner of Simple Assault, not Aggravated Assault. See (APP.

C, Pg ID# 8-10), where the judge charged the jury, compelling them to refer to the

instructions in applying the law in the case. The Aggravated Assault charge in Count

2, shows that Assault is a lesser included offense. (Id. at Pg ID# 24). The Jury

Instructions named only two elements to be found guilty of this offense, they are 1),

“that the defendant intentionally or knowingly caused ‘bodily injury’ to another; and

2), that the act involved the use or display of a deadly weapon. (Id. at Pg ID# 38).

The statute is clear that ‘serious bodily injury’ is required to convict for Aggravated

Assault, not ‘bodily injury’ as stated in the jury instructions. Had the court properly

instructed the jury as to the elements required for them to find the Petitioner guilty,

the only two elements presented in Count 2: were also presented to them in Count

I of the instructions. Blockburger requires under these circumstances the

Aggravated Assault charge be dismissed or merged for violating the Double-Jeopardy

Clause of the U.S. Constitution, or in the alternative resentence him for the lesser

included offense of Assault as instructed, which is a Class A Misdemeanor requiring

II months and 29 days maximum sentence to run concurrent with the Attempted

Murder charge.

The Tenn. Code Ann. § 39-13-101: Assault statute is provided to this court at

APP. C, Pg ID# 66-67), showing that only ‘bodily injury’ as presented in the jury

instructions is required to be found to convict on this lesser included offense to

Aggravated Assault, which requires the ‘serious bodily injury’ element to be found to

convict.

; •

As a matter of plain meaning, and applying the Blockburger test, one obviously

cannot attempt to commit First-Degree Murder Which Caused Serious Bodily Injury

without also causing some kind of‘serious bodily injury' that is a required element of

Aggravated Assault as shown in the Tennessee Statute, and shown in the jury

instruction explaining the meaning of‘bodily injury’ and ‘serious bodily injury’ in both

Counts of the indictment. (APP. A, Pg ID# 28 and 37-38) Therefore, only the

Attempted First-Degree Murder Statute contains an element the other does not,

Aggravated Assault contains the same elements as Attempted First Degree Murder

Which Caused Serious Bodily Injury.

As charged in the indictment, First Degree Murder is a “premeditated and

intentional killing of another.” T.C.A. § 39-13-202(a)(l); and, “A killing of another

as the result of the unlawful throwing, placing, or discharging of a destructive device

or bomb.” Criminal Attempt occurs when a person “acts with intent to complete a

course of action or cause a result that would constitute the offense, under the

circumstances surrounding the conduct as the person believes them to be, and the

conduct constitutes a substantial step toward the commission of the offense. T.C.A. §

39-12-101(a)(3). This is the exact language the Grand Jury used when finding a True

Bill in this case. They determined the “substantial step” necessary to reach their

determination was found in the “shooting of Mary Ann Greer where she suffered

serious bodily injury.” To wit:

“Michael John Stitts did unlawfully, knowingly, intentionally and

with Premeditation, attempt to kill Mary Ann Greer by taking the

following substantial step, to wit, shooting of said Mary Ann Greer,

and where the said Mary Ann Greer suffered serious bodily injury

as defined in T.C.A. 39-11-106 in violation of T.C.A. 39-13-202 and

T.C.A. 39-12-101, all of which is against the peace and dignity of the

State of Tennessee.”

(APP.C, Pg ID# 4)

As charged in the indictment, Aggravated Assault is defined in T.C.A. § 39-13102(a)(1)(A) and occurs when one, “Intentionally or knowingly commits an assault

as defined in § 39-13-101 and the assault: “Results in serious bodily injury to

another;'"' T.C.A. § 39-13-102(a)(l)(A)(i), which, “Involved the use or display of a

deadly weapon; T.C.A. § 39-13-102(a)(l)(A)(iii). This is the exact language the

Grand Jury used when finding a True Bill in this case. To wit:

“Michael John Stitts did intentionally and/or knowingly cause

bodily injury to Mary Ann Greer by the use of a deadly weapon,

to wit, a gun, a more particular description of which to the Grand

Jurors aforesaid is unknown, in violation of T.C.A. § 39-13-102.”

(APP. C, Pg ID# 5)

The jury instructions for CRIMINAL ATTEMPT, TO WIT: FIRST DEGREE

MURDER WHERE THE VICTIM SUFFERS SERIOUS BODILY INJURY,

required the jury to find (3) facts beyond a reasonable doubt. To wit:

1) that the defendant intended to commit First-Degree Murder; and,

2) that the defendant did some act intending to cause an essential

element of First-Degree Murder to occur, and at the time believed

the act would cause the element to occur without further action on

the defendant’s part; and,

3) that the victim suffered serious bodily injury.

(APP. C, PG ID# 27)

The indictment and evidence presented at trial, to which was properly before the

jury, showed beyond a reasonable doubt that Michael John Stitts intended to commit

First-Degree Murder when he allegedly assaulted Mary Ann Greer with a gun, which

caused serious bodily injury as defined in T.C.A. 39-13-202, and T.C.A. 39-12-101.

The jury instructions for AGGRAVATED ASSAULT, required the jury to find (2)

facts beyond a reasonable doubt, To Wit:

(1)that the defendant knowingly and intentionally caused bodily injury

to another; and,

(2) that the act involved the use or display of a deadly weapon;

(APP. C, Pg ID# 38)

The indictment and evidence presented at trial, to which was properly before the

jury, showed beyond a reasonable doubt that Michael John Stitts intentionally caused

♦

seriously bodily to another when he allegedly assaulted Mary Ann Greer with a

deadly weapon, i.e. a gun, as defined in T.C.A. 39-13-102, and T.C.A. 39-11-106.

Therein lies the controversy in this double-jeopardy claim, to wit: ‘Bodily Injury’ is

not an element of Aggravated Assault as presented to the jury for consideration; it is

however, an element of simple assault, (APP. C, Pg ID# 66 at § (a)(1), which is a

lesser included offense of aggravated assault as shown in the jury instructions. (APP.

C, Pg ID# 24 at Count 2 and Pg ID# 46). Therefore, it is evident from the face of

the record that the jury was misled and improperly instructed, because the elements

of the charged offenses presented, which they must have found beyond a reasonable

doubt, were not the statutory definitions that were required to be found, beyond a

reasonable doubt, to convict Petitioner.

The jury instructions define both ‘bodily injury’ and ‘serious bodily injury’ see

(APP. C, Pg ID# 28). Bodily Injury is defined as “a cut, abrasion, bruise, burn or

disfigurement, and physical pain or temporary illness or impairment of the function

of a bodily member, organ, or mental faculty.” While ‘serious bodily injury’ is defined

as “involving a substantial risk of death; protracted unconsciousness; extreme

physical pain; protracted or obvious disfigurement; or protracted loss or substantial

impairment of a function of a bodily member, organ or mental faculty.” ‘Deadly

Weapon’ was also defined in the Aggravated Assault jury instructions at (APP. C,

Pg ID# 38), “Deadly Weapon” means a firearm or anything manifestly designed,

made, or adapted for the purpose of inflicting death or ‘serious bodily injury’ or

anything that in the manner of its use or intended use is capable of causing death or

‘serious bodily injury.’ ” This shows by clear and convincing evidence on the face of

the record that the court took the two elements of simple assault, shown at (APP. C,

Pg ID# 46) and combined them in the first element of the Aggravated Assault, shown

at (APP. C, Pg ID# 38), which confused and misled the jury, which violated

Petitioner’s constitutional right to a complete and correct charge of the elements of

the crime in his jury instructions as held in U.S. v Tarwater, 308 F. 3d 494 (6th Cir.

2002), (quoting Sandstrom v Montana. 442 U.S. 510. 520. 99 S. Ct. 2450(1979)

(relying on In re Winship, 397 U.S. 358, 364. 90 S. Ct. 1068 (1970). “It is well

settled that jury instructions that relieve the prosecution of proving beyond a

reasonable doubt every fact necessary to each element of the offense charged violate

a defendant’s due process rights and therefore constitute constitutional error under

the 14th Amendment.”

The alleged victim Mary Ann Greer testified at trial, (APP. C, Pg ID# 81-8). that

she was shot from a shotgun blast through a bathroom door, hitting her in the upper

chest and arm area. She went through fifteen surgeries, which culminated in the

removal of her arm, suffered strokes, memory loss and decreased eyesight. The

description of her injuries, corroborated by medical records, and the jury’s own sight

of the missing limb, easily adhere to the legislative description of “serious bodily

injury”, as shown above.

It is clear on the face of the record that the jury fully intended to convict Michael

John Stitts of the Aggravated Assault charge, based on the evidence presented at

trial, and the heading of the jury instruction, i.e. Aggravated Assault. What they did

find Michael John Stitts guilty of, based on the elements presented in the jury

instructions, was Simple Assault, which is the lesser included Misdemeanor offense

of Aggravated Assault. For arguments sake, let’s assume the proper element

pertaining to Aggravated Assault, i.e. ‘serious bodily injury’ would have been

presented in the jury instruction instead of ‘bodily injury’. It may be properly

presumed the jury still would have found Petitioner guilty of Aggravated Assault

because it is clear that was their intention. However, by being convicted of

committing ‘serious bodily injury’ with the use of a dangerous weapon he was twice

put in jeopardy for the same elements required to find him guilty of CRIMINAL

ATTEMPT, TO WIT: FIRST DEGREE MURDER WHERE THE VICTIM

SUFFERS SERIOUS BODILY INJURY, which violated his Fifth Amendment

Right to be free of such action by the courts.

In Tennessee, “An accused has a constitutional right to complete and accurate jury

instructions on the law, and the court’s failure to provide complete and accurate jury

instructions deprives a defendant of the constitutional right, to a jury trial.”

Cauthern v State, 145 S.VF. 3d 571 (Tenn. Crim. Ann. 2004). “In criminal cases,

trial courts have the duty, without request, to give properjurv instructions as to the

law governing the issues raised by the nature of the proceeding and the evidence

introduced at trial.” State u Hawkins. 406 S.W. 3d 121, 129 (Tenn. 2013).

This court used the same reasoning in Ball v United States. 470 U.S. 856, 105

S. Ct. 1668, that should be used in this instant case, when it considered whether a

felon could conceivably be convicted for both receiving and possessing a firearm. The

Court’s answer was “NO”. This court should find that Petitioner could not be found

guilty of Attempted First Degree Murder Which Caused Serious Bodily Injury, by the

use of a gun: and at the same time be found guilty of Aggravated Assault, causing

serious bodily injury, by use of a gun, without violating Petitioner’s Fifth Amendment

Constitutional right to be free from twice being put in jeopardy for the same offense.

In this case, Petitioner was sentenced to 40 years for the Attempted Murder

conviction and an additional fifteen-year consecutive sentence for the Aggravated

Assault conviction.

Not with-standing the sufficiency of the convicting evidence, state courts are

constrained to consider as plain error whether a defendant’s multiple convictions

violate double jeopardy protections. See Tenn.R.App.P. Rule 36(b) (providing that,

“when necessary to do substantial justice, an appellate court may consider an error

that has affected the substantial rights of a party at any time, even though the error

was not raised in the motion for new trial or assigned as error on appeal.”) Dual

convictions resulting in the violation of a defendant’s protection against double

jeopardy constitute ‘plain error.’ See State v Lewis. 958 S.VF. 2d 736. 738 (Tenn.

1997), (applying the plain error doctrine to review whether the defendant’s dual

convictions violated double-jeopardy principles.) Based on the above precedent, the

state appeals court should have sua sponte analyzed the double jeopardy claim for

plain error. Instead, they chose to argue that the claim was waived, even though

TN.R.App.P. Rule 36(b) gave them jurisdiction to analyze the claim as shown above.

In order for a court to find plain error, the following must be met, “a) the record

must clearly establish what occurred in the trial court; and, b) a clear and unequivocal

rule of law must have been breached; and c) a substantial right of the accused must

have been adversely affected; and, d) the accused did not waive the issue for tactical

reasons; and, e) consideration of the error is necessary to do substantial justice.”

State v Smith, 24 S.VF. 3d 274. 282 (Tenn. 2000).

Here, the record clearly establishes that Petitioner was convicted of both

Attempted First Degree Murder Which Caused Serious Bodily Injury, and

Aggravated Assault, which requires ‘serious bodily injury to convict upon. Second,

multiple convictions for the same offense breach a clear and unequivocal rule of law.

Third, a fundamental constitutional right of Petitioner, his Fifth Amendment right

to be free from double-jeopardy, is affected. Fourth, the record is devoid of any

evidence that Petitioner waived the issue for tactical reasons, i.e. he raised it in his

post-conviction brief and in his habeas corpus petition. Fifth, Petitioner has shown

that consideration of a violation of his double-jeopardy protections is ‘necessary to do

substantial justice’, and no other court has analyzed the denial of that important

constitutional right throughout his trial and appellate procedures.

APPLYING THE BLOCKBURGER SAME ELEMENTS TEST

This case involves a multiple description claim because the petitioner has been

convicted of multiple offenses under different statutes. In these types of cases, “where

the same act or transaction constitutes a violation of two distinct statutory provisions,

the test to be applied to determine whether there are two offenses or only one, is

whether each provision requires proof of a fact the other does not.” Blockburger v

United States, 284 U.S. 299. 304. 52 S. Ct. 180 (1932). See also Lannelli v United

States. 420 US. 770. 785 n. 17. 95 S. Ct. 1284 (1975). “The court’s application of

the test focuses on the statutory elements of the offense. Focusing on the proof

necessary to prove the statutory elements of each offense.” The Blockburger Test

evaluates the statutory elements of the offenses without reference to the proof offered

at trial, so, a court can review a multiple punishment claim without a time-consuming

review of the trial transcript.

When the Blockburger same elements test is applied in this instant case, it is clear

that the Legislature intended to require ‘serious bodily injury’, in the Aggravated

Assault statute, (APP. C, Pg ID# 60) and the jury instructions clearly show that the

instructions were flawed, incorrect and incomplete, (APP. C, Pg ID# 38-39). The

main required element of‘serious bodily injury’ was omitted. This is contrary to the

jury instruction standard as required by U.S. Supreme Court precedent. See

Sandstrom v Montana, 442 U.S. 510, 520. 99 S. Ct. 2450 (1979) (relying on In re

Winship. 397 U.S. 358, 364. 90 S. Ct. 1068 (1970), “It is well settled that jury

instructions that relieve the prosecution of proving beyond a reasonable doubt every

fact necessary to each element of the offense charges violate a defendant’s due process

rights and therefore constitute constitutional error.”

In this instant case, Petitioner was found guilty of Attempted First Degree

Murder Where The Victim Suffers Serious Bodily Injury, to which he received

a (40) forty year sentence. He was found guilty of Aggravated Assault to which he

received a (15) fifteen-year sentence. He was found guilty of Aggravated Burglary,

to which he also received a (15) fifteen-year sentence. He was convicted of

Employing a Firearm During The Commission of a Dangerous Felony, to

which he received a (6) six year sentence. The Aggravated Assault, and Aggravated

Burglary convictions were run concurrent to each other, to be served consecutive to

the other convictions for a total of (61) sixty-one years.

Petitioner’s argument is as follows: 1) The crime of Criminal Attempt, To Wit:

First Degree Murder Where The Victim Suffers Serious Bodily Injury, with

§ (a)(3) of T.C.A. § 39-12-101 used as the descriptor in the jury instructions, (APP.

C, Pg ID# 27), as shown in the Criminal Attempt statute, (APP. C, Pg ID# 58), so

in this case only T.C.A. 39-13-202 § (a)(2) and (3) apply. In § (a)(2), the statute

states, “A killing of another committed in the perpetration or attempt to perpetrate

any First-Degree Murder, Arson, Robbery, Burglary. Theft, Kidnapping,.............

Therefore, because any attempted or actual burglary is an element of the offense

of Attempted First Degree Murder, the state has no authority or jurisdiction to charge

a defendant with a crime which is the element of, or lesser included offense of, the

higher charge in the indictment, without offending the Double-Jeopardy Clause.

Brown v Ohio, 432 U.S. 161, 168-69. 97 S. Ct. 2221(1977). The court committed

plain error when it allowed an overzealous prosecutor to overcharge the Petitioner in

this case, and the Aggravated Burglary conviction should be dismissed in the interest

of justice and fairness in the judicial process, because he received two convictions for

the same action and offense.

The Petitioner also argues that the Aggravated Assault conviction was based on

the incomplete, jury instruction that allowed the prosecution to only have to prove

beyond a reasonable doubt, the elements of simple assault as shown in the jury

instructions, to wit:

See the jury instruction for Count 1, Criminal Attempt, To W: First Degree

Murder Where The Victim Suffers Serious Bodily Injury, at (ADD. C, Pg ID#

27). Where the state was required to prove beyond a reasonable doubt: 1) That the

defendant intended to commit first degree murder; and 2) that the defendant did

some act intending to cause an essential element of First-Degree Murder to occur,

and at the time believed the act would cause the element to occur without further

action on the defendant’s part; and, 3) that the victim suffered serious bodily injury.

The court goes on to describe Intended, Serious Bodily Injury and Bodily Injury. The

Grand Jury made sure to inform the court they found the defendant intentionally and

knowingty attempted to kill Mary Ann Greer by taking the substantial step of

shooting her with a gun, causing serious bodily injury, as shown in the indictment.

(APP. C, Pg ID# 77)

Now see the jury instruction for Count 2, Aggravated Assault at (APP. C, Pg

ID# 38-39). Where the state was required to prove beyond a reasonable doubt: 1) that

the defendant intentionally or knowingly caused bodily injury to another; and 2) that

the act involved the use or display of a deadly weapon. The court goes on to instruct

the jury on the definitions of deadly weapon, knowingly and intentionally. The Grand

Jury made sure to inform the court they found the defendant intentionally and

knowingly caused bodily injury to Mary Ann Greer by the use of a deadly weapon.

(APP. C, Pg ID# 78) Although they cited to T.C.A. § 39-13-102 as the controlling

Tennessee statute for their finding, the ‘bodily injury’ element was incorrect, because

that is an element shown in T.C.A. § 39-13-101, which is simple assault, see (APP.

C, Pg ID# 66). While ‘serious bodily injury’ is a required element of the Aggravated

Assault statute, (APP. C, Pg ID# 60) which is the statute named by the Grand Jury

in the indictment.

It is obvious from the face of the record that the intent of the Grand Jury was to

indict the Petitioner under the named Aggravated Assault statute, (APP. C, Pg ID#

24), not the named elements of the lesser included offense of the named statute as

shown at, (APP. C, Pg ID# 24 at Count 2).

Petitioner has shown that if the court had properly instructed the jury on the

Aggravated Assault charge, as is required by the due process of law, the elements the

state would have had to prove were the same as those required by the Attempted

First-Degree Murder statute as charged in the jury instructions. To clarify, in Count

1, the statute required the state to prove: 1) that the defendant intended to commit

First-Degree Murder; and, 2) intended to cause an element of first-degree murder

and believed the act would cause the element to occur without further action on his

part. The jury informed the court this element was the discharging of the gun as

shown at (APP. C, Pg ID# 77) as is required in the statute as shown at (APP. C, Pg

ID# 56 at (a)(3); and finally, 3) the victim suffered serious bodily injury.

Therein lies the plain error that caused the prejudice to Petitioner. Had the court

properly instructed the jury according to the elements that must be proven beyond a

reasonable doubt in T.C.A. § 39-13-102, as is required by the due process of law, the

only two elements that would have been submitted to the jury as required by the

statute were 1) that the defendant knowingly and intentionally caused ‘serious bodily

injury’ to another; and 2) the act involved the use or display of a deadly weapon. See

(APP. C, Pg ID# 38) showing the incorrect ‘bodily injury’ element submitted to the

jury, and see (APP. C, Pg ID# 60), showing the correct statutory elements of

knowing and intentionally, causing serious bodily injury to another, involving the use

or display of a deadly weapon. Petitioner was already found guilty of these same

elements in Count 1. Therefore, by using them again in Count 2 was duplicitous and

a clear violation of the Double-Jeopardy Clause of the Fifth Amendment.

Remembering that Criminal Attempt only requires the element intentionally or

knowingly, so both of these charges contained identical elements to be proven to

convict.

Because the jury instructions at issue negated the government’s proving ‘beyond a

reasonable doubt’ a fact necessary to an element of the charged offense is subject to

harmless error review. See Neder v United States. 527 U.S. 1, 8, 119 S. Ct. 1827

(1999). According to this Supreme Court, “a limited class of fundamental

constitutional errors...defy analysis by harmless error standards, because they

include defects affecting the framework from which the trial proceeds, rather than

simply an error in the trial process itself. These errors necessarily render a trial

fundamentally unfair.” Id. at 7. 8, 119 S. Ct. 1827.

The erroneous jury instructions at issue in this case should not be subject to

harmless-error analysis. This court has established that jury instructions that

misdescribe or omit an element of an offense is subject to harmless-error review. Id.

However, in Sullivan, the court held that jury instructions that consist of a

misdescription of the burden of proof, which vitiates all the jury’s findings, is a

structural error, and as such it could not be subject ot this type of analysis. Sullivan

508 U.S. at 281, 113 S. Ct. 2078. The instruction in Sullivan generally misdescribed

the reasonable doubt standard, as opposed to misdescribing the burden of proof for

just one element of the offense. However, inasmuch as the constitutionally erroneous

jury instructions in this case involved the only element at issue in Petitioner’s trial,

and one of only two elements of the offense itself-the misdescription of the burden of

proof in this case has the same general effect as the general misdescription in the

Sullivan case. Because Burglar}' is listed as one of the crimes that is associated with

first degree murder in T.C. A. § 39-13-202, and, ‘serious bodily injury' the essential

fact to the element at issue in the Aggravated Assault charge in this case, the

erroneous jury instructions do vitiate all the jury’s findings. As to the Burglary

charge, the double jeopardy prohibition against multiple punishments functions to

prevent prosecutors and courts from exceeding the punishment legislatively

authorized. See Albernaz, 450 U.S. at 344. 101 S. Ct. 1137. As a Canon of statutory

construction, the U.S. Supreme Court presumes “that where two statutory provisions

proscribe the ‘same offense,’ a legislature does not intend to impose two punishments

for that offense.” Rutledge v United States, 517 U.S. 292, 297. 116 S. Ct. 1241,

(1996).

To sum it up, Petitioner was entitled to an instruction informing the jury of the

elements of ‘serious bodily injury’, but the jury instructions did not include that

element, it was instead, replaced with a ‘bodily injury’ element. Accordingly, the

omission had the effect of diminishing the government’s burden of proof.

Consideration of the error is necessary to do substantial justice because the error

affected a ‘substantial right’ of Petitioner, namely the “right to the proof of every

element of the offense,” for the Aggravated Assault charge. Also, the Double-Jeopardy

clause of the United States Constitution provides that “no person shall be subject for

the same offense to be twice put in jeopardy of life or limb.” U.S. Const. Amend. V.

Similarly under the Tennessee Constitution under Article 1 § 10.

Criminal Attempt, To Wit: First Degree Murder Where the Victim Suffers

Serious Bodily Injury as the jury was instructed, requires a defendant to have 1)

intentionally or knowingly; 2) caused ‘serious bodily injury’; 3) by discharging a gun,

as charged in the indictment. While Aggravated Assault, which was not properly

instructed in the jury instruction requires a defendant to have 1) intentionally or

knowingly; 2) caused ‘serious bodily injury’; 3) by discharging a gun, as shown in the

indictment and elements of T.C.A. § 39-13-102. Aggravated Assault.

The Supreme Court in Neder. 527 U.S. at 15, explained that, for a constitutional

error to be harmless, it must appear beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.” Petitioner argues that had

the jury been properly instructed it would have had to have found that he was guilty

of‘serious bodily injury'' to the victim by the ‘use of a deadly weapon’. Therefore, it

seems impossible that a jury instruction that omitted the higher burden of‘serious

bodily injury’ did not contribute to the verdict. Because the jury instruction shifted

the government’s burden of proof to Petitioner as to a fact going to the main element

at issue in his duplicitous charges, the errors are structural and therefore mandate a

remand for resentencing at the very least.

U.S. Supreme Court Shows Claim Was Forfeited Not Waived

This court has previously rejected a threshold Waiver argument through its

holdings in Menna v New York, 423 U.S. 61. 96 S. Ct. 241 (1975), that a “prisoner

does not waive a claim that-judged on its face-is one the state may not constitutionally

prosecute.” See Broce, 488 U.S. at 575. 109 S. Ct. 757, ^quoting Menna. Id,.), “The

New York court of Appeals concluded that Menna had waived his double jeopardy

claim. We reversed, citing Blackledge for the proposition that ‘where the state is

precluded by the United States Constitution from haling a defendant into court on a

charge, federal law requires that a conviction on that charge be set aside even if the

conviction was entered pursuant to a plea of guilty.” 423 U.S. at 62. 96 S. Ct. at 242.

This court rejected the waiver of a double jeopardy claim in the case oiBlackledge

v Perry, 417 U.S. 21, 94 S. Ct. 2098 (1974), where this court held, “the potential for

prosecutorial vindictiveness raised sufficiently serious due process concerns to

require a rule forbidding the state to bring more serious charges against defendants

who have the due process right not to be haled into a court at all upon a duplicitous

felony charge. The very initiation of the proceedings against him...thus operated to

deny him due process of law. 417 U.S. at 30-31. 94 S. Ct. at 2104.” In both Menna

and. Blackledge, as in this case, the determination that the case could not go forward

should have been made by the presiding judge on the existing record. The

constitutional infirmity in the proceedings lay in the state’s power to bring any

indictment at all. In Menna, as here, the indictment was facially duplicative, and

could not conceivably be construed to extend beyond the charged offenses.

In this instant case, The Court of Appeals acknowledges the double-jeopardy

argument made by the Petitioner at (APP. A, Pg ID# Pg 38A), and is confirmed in

Petitioner’s post-conviction brief at (APP. B, Pg ID# Pg 22-23B). Accordingly,

Petitioner shows that he could not waive a double-jeopardy challenge to charges that,

judged from the face of the indictment and the record existing at the time, the charges

are such that the government could not constitutionally prosecute under the double

jeopardy clause of the U.S. Constitution,- or Article 1 § 10 of the Tennessee

Constitution. United States v Smith. 532 F. 3d 1125 (11th Cir. 2008): United

States v Garcia-Valenzuela. 232 F. 3d 1003. 1007 n. 2 (9th Cir. 2000): United

States v Rasland, 3 Fed. Ayy’x 279. 284 n. 3 (6th Cir. 2001): United. States v

Grant. 114 F. 3d 323, 329 (1st Cir. 1997): Sellers v Morris. 840 F. 2d 352 (6th Cir.

1988). As explained below, Petitioner’s charges for attempted first degree murder,

aggravated assault, aggravated burglary, and employing a firearm during the

commission of a dangerous felony, are just the type of charges where the reasoning

in Menna logically applies to separate charges for the same criminal conduct.

Petitioner argues that no matter how validly his factual guilt was established, the

charges, judged on their face, are those that the state may not constitutionally

prosecute. Therefore, there is no logical basis for not applying the Menna analysis to

simultaneous prosecutions.

The U.S. Supreme Court distinguished Menna, and cases from sister circuits have

accordingly declined to find a double-jeopardy waiver in cases where it was not

necessary to look beyond the indictments to see whether the defendant received

multiple sentences for the same crime. See Smith. 532 F. 3d at 1127-28; Grant. 114

F. 3d at 328-29. The Eleventh Circuit in Smith relied on a prior holding in United

States v Kaiser, 893 F. 2d 1300-1302 n. 2 (11th Cir. 1990). The Sixth Circuit itself

,v*

reasoned in United States v Ragland, albeit unpublished, supporting rejection of

the waiver argument in these types of cases. In Ragland, the government argues

that the defendant waived the double-jeopardy challenge by failing to properly raise

it. The court rules against that argument, holding, “The defendant did not waive the

double-jeopardy challenge, since the court permits review of those cases in which the

multiplicity of charges is apparent in the record and resulted in multiple sentences”

and because, “the Supreme Court has suggested and many circuits have found

double-jeopardy issues cannot be waived when predicated on multiple punishments

for the same offense, and where as here, the issues appear on the face of the

indictment and can be resolved without an additional evidentiary hearing.” Id. citing

Broce. 488 U.S. at 575-76. 109 S. Ct. 757.

The Sixth Circuit went on to hold that waiver had not been shown in Ragland,

Id. and they were not limited to plain error review, finding that “the double-jeopardy

challenge was forfeited, rather than waived, and was subject to plain error review.

The court relied on their application of plain error review in United States v

Branham, 97 F. 3d. 835, 841-42 (6th Cir. 1996), which held that a double-jeopardy

claim premised on multiplicity of punishments was forfeited (not waived) when the

claim had not been properly raised with the state court. In the present case, in

contrast, Petitioner made arguments that support a double-jeopardy claim, by relying

on the double jeopardy clause of the U.S. Constitution, in both his post-conviction and

habeas corpus petitions. He argued the premise that there was only one crime, and

challenged the concept of how you can attempt to kill someone, without assaulting

them, and then be charged with using a weapon during the attempted murder and

assault of the victim. Petitioner has shown the elements of the crimes are the same

in the statutes, passing the Blockburger Test. Therefore, this court is not intruding

on the finality and comity interests of the state court proceedings when it conducts a

plain error review of the double-jeopardy claim. The Fifth Amendment is clear on the

subject of double-jeopardy, stating, “....nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb.”

The Sixth Circuit Court of Appeals held at (APP. A, Pg ID# 7A), “This claim is

procedurally defaulted. He seeks to excuse his procedural default by showing ‘cause

and prejudice. Petitioner seems to be seeking relief under Martinez.” The Appellate

Court erroneously applies Abdur-Rahman v Carpenter. 805 F. 3d 710. 714 (6th

Cir. 2015). “declining to apply Martinez to claims of Brady violations, prosecutorial

misconduct, trial errors, ineffective assistance of appellate counsel, and cumulative

error. The Sixth Circuit has also concluded that Martinez does not apply when the

federal claim was defaulted in state collateral appellate proceedings.” Citing

Middlebrooks. 843 F. 3d, at 1139.

These findings have resulted in a decision that was contrary to, and is an

'unreasonable application of clearly established federal law, as determined by the

Supreme Court of the United States, leaving this finding in direct contravention to

28 U.S.C.A. 28 § 2254(d)(1) and AEDPA. The Sixth Circuit Court of Appeals

confirms at (APP. A, Pg ID# 38-39A) that the U.S. Supreme Court held that

Martinez, Id. “applies to the ineffective assistance of post-conviction counsel as

cause for a procedural default of a claim of ineffective assistance of trial counsel. 566

U.S. at 9. Martinez also does not apply where, as Petitioner claims, the procedural

default occurred in his post-conviction appeal due to the alleged ineffective assistance

of post-conviction appellate counsel.” (Id. at Pg ID# 39A)

The record clearly shows that Petitioner brought his Double Jeopardy claim under

both ineffective assistance of trial counsel and trial court error in his Post-Conviction

petition, see (APP. B, Pg ID # 22B at *1), “Petitioner asserts that his conviction and

sentence are constitutionally infirm, resulting from the fact that petitioner suffered

from violations of the Fifth, Sixth and Fourteenth Amendments to the U.S.

Constitution and Due Process provisions of the Tennessee Constitution in that his

conviction was the result of ineffective assistance of legal counsel.” Petitioners

underlying defaulted claim is that his convictions violate the Double-Jeopardy Clause

because his trial counsel was ineffective when he failed to bring this constitutional

violation to the court’s attention at trial or on direct appeal. Petitioner testified to

such during his Post-Conviction evidentiary hearing at (APP. A, Pg ID# 49-52A)

Up to this point in Tennessee, the accused has the right to the effective assistance

of counsel at trial and direct appeal as provided by the U.S Supreme Court in

Strickland v Washington, 466 U.S.

668. 104 S. Ct. 2052, and the Tennessee

Supreme Court under Baxter v Rose. 523 S.W1 2d 930. (TN 1975). See also (APP.

B, Pg ID# 18B,) “Petitioner submits his conviction was obtained in violation of the

5th, 6th and 14th Amendments in that he was denied the effective assistance of Counsel.

Thus, Martinez clearly applies in this instance in trial counsel’s failure to move to

dismiss the duplicative charges in the indictment before trial, and direct appeal

counsel failing to raise the issue in the direct appeal brief.

MARTINEZ HOLDING IN CONFLICT WITH SISTER CIRCUITS

The Tennessee Federal District Court at Jackson, opined in their denial of habeas

relief that, “Petitioner raised his double-jeopardy claim in his post-conviction petition.

He did not however, raise it before the TCCA in his post-conviction appeal. Petitioner

only argued his claims of ineffective assistance of counsel. (APP. A, Pg ID# 38A).

Petitioner no longer has an available state court remedy to properly exhaust his

claim, it is procedurallv defaulted. (Id. Pg ID# 39A).

The Sixth Circuit Court of Appeals opined, “Stitts argues that his default should

be excused because post-conviction counsel was ineffective for failing to raise the

issues on appeal. Although the failure of post-conviction counsel to raise an issue can

in some circumstances excuse a default, see Martinez v Ryan, 566 U.S. 1.14 (2012),

that principle does not extend beyond the trial court’s initial post-conviction review.

Thus, alleged ineffective assistance on appeal from the denial of the post-conviction

petition cannot serve as cause for a procedural default.” This opinion is in direct

contradiction to the U.S. Supreme Court, the Tennessee Federal District Court, and

all of her sister circuits on this issue.

Keeping in mind the Tennessee Federal District Court conceded that Petitioner

*»

9 ^

raised the double-jeopardy issue in both his initial post-conviction petition, and again

in his initial habeas corpus petition, he is not at fault for not adhering to the

procedural processes of the State of Tennessee. In Tennessee, a prisoner has to file a

timely post-conviction petition, with all constitutional claims he wishes to raise,

within one-year of the state court decision on his direct appeal, or denial of his Rule

11 petition. T.C.A. § 40-30-102. After a Petitioner files his initial petition, without

the aide of counsel, TN.Sup.Ct. Rule 13 § 6(c), requires “counsel to amend the

petition if necessary, and TN.Sup.Ct. Rule 14, requires counsel to file an appeal

on behalf of an indigent Petitioner, unless a motion is filed with the trial court to

withdraw from representation within the 14-day time period to file the appeal from

denial of post-conviction relief. This shows the holdings of the state and federal court

that Petitioner has no right to the assistance of post-conviction counsel on appeal

from the denial of his post-conviction petition for relief is erroneous. Because counsel

did not move to withdraw himself from appellate representation, and the issues

complained of by Petitioner were, in fact, ineffective assistance of trial counsel during

the trial and direct appeal as of right from his initial conviction.

The sister circuits, as well as this court, are in disagreement with the Sixth Circuit

on whether a Petitioner has the right to raise ineffective assistance of trial counsel

on appeal, under the U.S. Supreme Court precedent in Martinez, as reiterated in

Shinn v Ramirez. 142 S. Ct. 1718 at *43, “A federal habeas court may not hold an

evidentiary.hearing or consider new evidence to assess cause and prejudice under our

previous holding in Martinez.”

The U.S. District Court, Mass., in Martinez v Alves, 2024 WL 4349239, held, “A

habeas Petitioner must show errors of trial counsel worked to his disadvantage,

infecting the entire trial with error of constitutional dimension.”

The Second Circuit in the case of Fellows v Baker. 2021 WL 4200875 (2nd Cir.

2021), the Supreme Court has recognized a narrow exception to the rule of Ineffective

Assistance of post-conviction counsel. “Where State law requires Ineffective

assistance of Trial Counsel claims to be brought in initial review collateral

proceedings (rather than on direct appeal), or channels such claims into collateral

proceedings, a procedural default will not bar a federal habeas court from healing a

substantial claim of the Ineffective Assistance of Trial Counsel. (Citing Arthur v

Thomas, 739 F. 3d 611, 630 (11th Cir. 2014), “Martinez Rule explicitly relates to

excusing a procedural default of Ineffective Assistance of trial counsel claims, on post

conviction appeal.”

The case of Richardson v Superintendent Coal Township SCI. 905 F. 3d 750

(3rd Cir. 2021). held, “Prisoner had cause for Procedural Default of 6th Amendment

claim where post-conviction counsel was ineffective for failing to rebut ineffective

assistance of trial counsel on appeal.”

Mahdi v Sterling, 20 F. 4th 846 (4th Cir. 2021), “Supreme Court created narrow

exception to overcome procedural default under Martinez v Ryan, 132 S. Ct. 1309,

applicable to ineffective assistance of trial counsel by post-conviction counsel on

appeal.” Mahood v Ames, 2024 WL 1339526 (4th Cir. 2024), “Cause for procedural

default exists where something external to Petitioner, something not fairly

attributable to him impeded his efforts to comply with a procedural rule on post

conviction appeal.”

Based on the evidence presented above, in concert with, the split in the circuits

shown, Petitioner suffered a substantial violation of his constitutional rights under

the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution, when he was

subjected to double-jeopardy of offenses that increased his sentence by 15 years, and

the ineffective assistance of trial counsel, that his post-conviction counsel failed to

raise the double-jeopardy issues on appeal.”

All premises considered, Petitioner is entitled to the relief sought from this court.

Respectfully Submitted,

Michael John Stitts #213173

Northeast Correctional Complex

5249 Hwy 67 W

Mountain City, TN 37683-5000

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.