The opinion of the court was delivered by: Harry S. Mattice, Jr. United States District Judge
This is a petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed by petitioner John Robert Benson ("Benson"). The matter is before the court on the respondent's answer to the petition and Benson's response. For the following reasons, the petition for the writ of habeas corpus will be DENIED and this action DISMISSED WITH PREJUDICE.
A state prisoner is entitled to habeas corpus relief "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254. 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 Benson 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 Benson's direct appeal and post-conviction proceedings. [Court File No. 6, Notice of Filing Documents, Addenda 1-4]. Benson was convicted by a jury, in the Circuit Court of Bedford County, Tennessee, of two counts of attempted first degree murder and three counts of reckless endangerment. He was sentenced as a Range I offender to concurrent sentences of 22 years each on the attempted murder convictions, and as a Range II offender to four years each on the reckless endangerment convictions. Two of the three reckless endangerment offenses were ordered to be served concurrently, with the reckless endangerment convictions ordered to be served consecutive to the attempted murder convictions, for a total effective sentence of 30 year in the Tennessee Department of Correction. The judgments of conviction were affirmed on direct appeal. State v. Benson, No. 01C01-9806-CC-00239, 2000 WL 19535 (Tenn. Crim. App. January 13, 2000) [Addendum 2, Document 3], perm. app. denied, id. (Tenn. October 16, 2000 [Addendum 2, Document 5].
Benson then filed a petition for post-conviction relief. The post-conviction petition was denied after an evidentiary hearing, and the Tennessee Court of Criminal Appeals affirmed. Benson v. State, No. M2001-02510-CCA-R3-PC, 2002 WL 31777741 (Tenn. Crim. App. December 12, 2002) [Addendum 4, Document 3, perm. app. denied, id. (Tenn. April 28, 2003) [Addendum 4, Document 5].
In support of his petition for the writ of habeas corpus, Benson alleges the following:
(1) the evidence was insufficient to support the conviction; (2) the sentence he received was excessive; and (3) he received ineffective assistance of counsel. The respondent contends he is entitled to judgment as a matter of law based on procedural default with respect to the third claim, for lack of federal jurisdiction on the second claim, and on the findings of the Tennessee state courts as to the first claim.
A. Procedural Default / Ineffective Assistance of Counsel
The doctrine of procedural default is an extension of the exhaustion doctrine. A state prisoner's petition for a writ of habeas corpus cannot be granted by a federal court unless the petitioner has exhausted his available state court remedies. 28 U.S.C. § 2254. This rule has been interpreted by the Supreme Court as one of total exhaustion. Rose v. Lundy, 455 U.S. 509 (1982). Thus, each and every claim set forth in the federal habeas corpus petition must have been presented to the state appellate court. Picard v. Connor, 404 U.S. 270 (1971). See also Pillette v. Foltz, 824 F.2d 494, 496 (6th Cir. 1987) (Exhaustion "generally entails fairly presenting the legal and factual substance of every claim to all levels of state court review."). Moreover, the substance of the claim must have been presented as a federal constitutional claim. Gray v. Netherland, 518 U.S. 152, 162-63 (1996).
Benson cannot file another state petition for post-conviction relief. Tenn. Code Ann. § 40-30-102(a). Accordingly, he has no remedy available to him in the Tennessee state courts for challenging his conviction and is deemed to have exhausted his state remedies.
It is well established that a criminal defendant who fails to comply with state procedural rules which require the timely presentation of constitutional claims waives the right to federal habeas corpus review of those claims "absent a showing of cause for the non-compliance and some showing of actual prejudice resulting from the alleged constitutional violation." Wainwright v. Sykes, 433 U.S. 72, 84 (1977). Accord Engle v. Isaac, 456 U.S. 107, 129 (1982) ("We reaffirm, therefore, that any prisoner bringing a constitutional claim to the federal courthouse after a state procedural default must demonstrate cause and actual prejudice before obtaining relief.").
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991). "When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court." Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991).
Benson alleges that his attorney failed to properly investigate his case, failed to properly prepare for a suppression hearing, and failed to challenge the actions of the police when Benson was first arrested. Benson raised numerous allegations of ineffective assistance of counsel in his petition for post-conviction relief. [Addendum 3, p. 20, Grounds for Relief in support of Post-Conviction Petition; pp. 37-40, Amended Petition for Post-Conviction Relief]. On appeal from the denial of that petition, however, Benson only raised one issue of ineffective assistance of counsel: "Trial counsel was ineffective in not moving for a mistrial and thus ...