The opinion of the court was delivered by: Thomas W. Phillips United States District Judge
This is a petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which petitioner alleges he received ineffective assistance of counsel. The matter is before the court on the respondent's answer to the petition and the petitioner's reply thereto. There is also pending petitioner's motion to substitute Warden David Mills for Warden Jim Worthington as the respondent in this case and petitioner's motion for an evidentiary hearing and expansion of the record. The motion to substitute [Court File No. 13] will be GRANTED. The court having determined, after a review of the answer and the records of the case, that petitioner is not entitled to habeas corpus relief, there is no need for an evidentiary hearing or expansion of the record. Accordingly, petitioner's motion in that regard [Court File No. 14] will be DENIED. The petitioner for the writ of habeas corpus will be DENIED and this action DISMISSED WITH PREJUDICE.
Under Rule 8 of the Rules Governing Section 2254 Cases In The United States District Courts, the court is to determine, after a review of the answer and the records of the case, whether an evidentiary hearing is required. If no hearing is required, the district judge is to dispose of the case as justice dictates. If the record shows conclusively that petitioner is not entitled to relief under § 2254, there is no need for an evidentiary hearing and the petition should be denied. Baker v. United States, 781 F.2d 85, 92 (6th Cir. 1986).
The respondent has provided the court with copies of the relevant documents as to petitioner's post-conviction proceedings. [Court File No. 10, Notice of Filing, Addenda 1-9]. Petitioner pleaded guilty, in the Criminal Court of Jefferson County, Tennessee, to an information charging him with attempted rape of a child. Petitioner filed a petition for post-conviction relief, in which he alleged ineffective assistance of counsel as well as error by the trial court in imposing sentence. The post-conviction petition was denied after an evidentiary hearing, and the Tennessee Court of Criminal Appeals affirmed. Devereaux v. State, No. E2004-01891-CCA-R3PC, 2005 WL 1353327 (Tenn. Crim. App. June 8, 2005) [Addendum 6], perm. app. denied, id. (Tenn. October 24, 2005) [Addendum 9]. The Tennessee Court of Criminal Appeals summarized the history of petitioner's conviction as follows:
The proof at the petitioner's post-conviction hearing revealed that the sixty-year-old petitioner was originally indicted in Knox County for rape of a child.*fn1 The victim was his five-year-old granddaughter. At the hearing, the petitioner's trial counsel recalled that the Knox County District Attorney General's office offered the petitioner the opportunity to plead guilty to aggravated sexual battery in exchange for a sentence of 7.2 years as an especially mitigated offender, with release eligibility after service of one hundred percent of the sentence. After earning the maximum possible sentencing credits, the petitioner could have been eligible for release after serving eighty-five percent of his sentence. Upon the advice of counsel, the petitioner rejected the plea offer and elected to proceed to trial. Trial counsel explained that he was aware that the offense had actually occurred in Jefferson County; therefore, he was "playing for the fumble" on the issue of venue. Counsel hoped that Knox County would proceed on the charges until jeopardy attached, then the petitioner could not be prosecuted on the charges.*fn2
While the Knox County charge was pending, counsel had the petitioner evaluated by Dr. Dianna McCoy, a licensed psychologist practicing in Knoxville. The evaluation was performed in anticipation of a future parole hearing. However, counsel never received a report from Dr. McCoy. Despite the lack of information from Dr. McCoy, counsel anticipated that Dr. McCoy would testify at a future parole hearing that the petitioner, in compliance with Tennessee Code Annotated section 40-35-503(c) (2003), was not at risk to reoffend.
Before trial occurred in Knox County, the Knox County District Attorney General's office learned that the offense had occurred in Jefferson County; thus, the offense was being prosecuted in the wrong county. Accordingly, the Knox County District Attorney General's office sent the information regarding the offense to the Jefferson County District Attorney General's office.
Prior to a Jefferson County indictment on the charge of rape of a child, the petitioner and his counsel engaged in plea negotiations with the Jefferson County District Attorney General's office. The State submitted alternative plea offers. First, the State reiterated the Knox County offer of a guilty plea to aggravated sexual battery in exchange for a sentence of 7.2 years as an especially mitigated offender with release eligibility after service of one hundred percent of the sentence. If the petitioner earned the maximum amount of sentencing credits, he could potentially be released after serving eighty-five percent of the sentence. Alternatively, the State offered to allow the petitioner to plead guilty to attempted rape of a child in exchange for a sentence of twelve years with release eligibility after service of thirty percent of the sentence. The petitioner ultimately agreed to be charged by information, and he accepted the guilty plea to attempted rape of a child with the agreed twelve-year sentence.
Id., slip op. at 1-2, 2005 WL 1353327 at *1 (footnotes omitted).
In support of his petition for the writ of habeas corpus, petitioner alleges he received ineffective assistance of counsel. The respondent contends he is entitled to judgment as a matter of law based upon the findings of the Tennessee state courts.
III. State Court Findings
Pursuant to 28 U.S.C. § 2254(d), petitioner may not obtain federal habeas corpus relief with respect to a claim that was adjudicated on the merits in a state court proceeding unless the state court decision (1) was contrary to, or involved an unreasonable application of, clearly established federal law or (2) was not reasonably supported by the evidence presented to the state court. In addition, findings of fact by a state court are presumed correct and petitioner must rebut the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e).
The Supreme Court, in Williams v. Taylor, 529 U.S. 362 (2000), clarified the distinction between a decision "contrary to," and an "unreasonable application of," clearly established Supreme Court law under § 2254(d)(1). A state court decision is "contrary to" Supreme Court precedent "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Id. at 413. A state court decision "involves an unreasonable application of clearly established Federal law" only where "the state court's application of clearly established federal law was objectively unreasonable." Id. at 409. A federal habeas court may not find a state adjudication to be "unreasonable" "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411.
IV. Ineffective Assistance of Counsel
In Strickland v. Washington, 466 U.S. 668 (1984) the United States Supreme Court established a two-part standard 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. Id. at 687.
To establish that his attorney was not performing "within the range of competence demanded of attorneys in criminal cases," McMann v. Richardson, 397 U.S. 759, 771 (1970), petitioner must demonstrate that the attorney's representation "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. at 687-88. In judging an attorney's conduct, a court should consider all the circumstances and facts of the particular case. Id. at 690. Additionally, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. ...