The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
Richard Lynn Norton, a state prisoner, has filed this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254, alleging that he is being confined in violation of the Constitution. Several motions are pending, the first of which is respondents' dual motion to dismiss and for summary judgment. [Doc. 44]. Respondents have also submitted petitioner's voluminous state court record. [Doc. 45, Add. Nos. 1-47; Doc. 64, Add. Nos. 48-52, 54; Doc. 68, Addendum No. 53]. Petitioner opposes the motion and he too moves for summary judgment. [Docs. 52 and 54]. For the following reasons, the Court will GRANT respondents' motions and DENY petitioner's motion.
In 1999, petitioner was convicted of three cocaine-related offenses by a jury in the Greene County Criminal Court and was sentenced to serve three consecutive 12-year sentences. Petitioner pursued direct review and was denied relief on all claims, save one, which resulted in a modified sentence (to an effective 24-year term).
State v. Norton, No. E1999-00878-CCA-R3-CD, 2000 WL 1185384 (Tenn. Crim. App. Aug. 22, 2000), perm. app. denied (Tenn. 2001). He also filed a post-conviction petition, but the trial court denied relief, the decision was affirmed on appeal, and the state supreme court declined further review. Norton v. State, No. E2002-00305-CCAR3PC), 2003 WL 252619 (Tenn. Crim. App. Feb. 5, 2003), perm. app. denied (Tenn. 2003).
Petitioner unsuccessfully pursued other judicial remedies, including a state petition for habeas corpus relief, filed while his direct appeal was still pending [Doc. 45, Add. Nos. 11-19]; a state court civil action for a writ of mandamus [id., Add. Nos. 32- 39]; a petition for a writ of error coram nobis, still pending when he filed this instant § 2254 petition, though since dismissed [id., Add. Nos. 40-47]; and at least two prior federal petitions for a writ of habeas corpus under 28 U.S.C. § 2254. Norton v. State of Tennessee, et al., No. 2:97-cv-327 (E.D. Tenn. 1997) (dismissed without prejudice for failure to exhaust state remedies); Norton v. State of Tennessee, No. 2:98-cv-200 (E.D. Tenn. 1998) (same). He now brings this instant petition for habeas corpus relief, asserting numerous grounds for relief.*fn1
The following summary of facts is taken from the state appellate court's opinion during petitioner's direct appeal:
The [petitioner's] convictions stem from three controlled buys arranged by the Third Judicial District Drug Task Force. On December 22, 1996, a confidential informant, Penny Knight, was paged by the [petitioner], who offered to sell her crack cocaine. Ms. Knight arranged to meet the [petitioner] and his co-defendant, Robin Willett Key, in the parking lot of the Food Country Supermarket in Mosheim, Tennessee, at 3:00 P.M. on the following day. Prior to the meeting, Greene County Sheriff's Deputy Doug Johnson and his partner, Tim Ward, wired Ms. Knight for sound and insured that she had no illegal drugs either in her possession or in her vehicle. The officers gave her $300 in cash and, while parked in their vehicle across the street from the transaction, monitored the exchange via the wire. The [petitioner] and co-defendant Key were together when they arrived at the Food Country parking lot. Ms. Key was driving and the [petitioner] was seated in the passenger seat. The officers observed Ms. Knight approach the passenger side of the vehicle in which the [petitioner] was riding, make conversation with the occupants, place her hands inside the car, and then leave. After the exchange, Ms. Knight returned to the officers and provided them with one gram of cocaine, the remainder of the cash they had given her, and the sound equipment. Both an audio tape and a transcript of the December 23 transaction were introduced at the [petitioner's] trial.
Eight days after the first purchase, the [petitioner] and Ms. Key met Ms. Knight again at the same parking lot. This time, Ms. Knight purchased 1.4 grams of crack cocaine. A video tape and a transcript of that purchase were introduced at trial, but were not included in the record. Ms. Knight testified that the second transaction occurred in the same manner as the first. She stated that she was paged by the [petitioner] who offered to sell her crack cocaine. She was wired and searched before arriving at the parking lot to meet the [petitioner], who was in the passenger seat of a car driven by Ms. Key. She approached the [petitioner] and then exchanged cash for the crack cocaine. At trial, Officers Ward and Johnson testified that they observed this transaction and otherwise confirmed the substance of Ms. Knight's testimony.
The final transaction occurred on January 13, 1997, at the same location. At this purchase, Ms. Knight bought 0.6 grams of crack cocaine from the [petitioner] and Ms. Key.
Ms. Knight testified that she purchased a total of 3.0 grams of crack cocaine from the [petitioner]. She asserted that she had never used crack cocaine, but acknowledged that she was convicted of grand larceny in 1986.
State v. Norton, 2000 WL 1185384, *1-*2.
III. The Dispositive Motions
In their motion to dismiss, respondents maintain that, except for Ground 13 and certain sub-parts of Ground 22, the other grounds in the petition have been procedurally defaulted because they were not presented properly to the state appellate courts and should be dismissed for that reason. In seeking summary judgment, respondents assert that Ground 13 (alleging insufficient evidence) and parts of Ground 22 (claiming ineffective assistance of counsel) were adjudicated in state courts and that, under the deferential review standards for state court decisions in 28 U.S.C. § 2254, they are entitled to summary judgment as to these claims. This is so, they maintain, because the resulting decision was not contrary to or an unreasonable application of well established federal law.
Petitioner has responded to the dual motion,*fn2 arguing, as the Court understands his response, that the state court record will show that he raised his claims in the trial court, the state appeals court, and the state supreme court, that he exhausted those claims and, thus, his claims were not procedurally defaulted. Petitioner also suggests that respondents are not entitled to summary judgment based on material factual disputes which still remain since the state courts did not resolve the "39 grievances" offered to support his ineffective-assistance claim. He too seeks summary judgment.
The Court has divided the claims into two categories. The first category consists of the allegedly procedurally defaulted claims and the second is comprised of claims adjudicated in state courts.
IV. Law of Exhaustion/Procedural Default
28 U.S.C. § 2254(b) (1) provides that a state prisoner's petition for a writ of habeas corpus will not be granted unless it appears that the petitioner has exhausted his available state court remedies, or that there is an absence of available state corrective process, or that circumstances exist that render such process ineffective to protect a petitioner's rights. Exhaustion "generally entails fairly presenting the legal and factual substance of every claim," Pillette v. Foltz, 824 F.2d 494, 496 (6th Cir. 1987), through one full round of the state court's established review procedures. O'Sullivan v. Boerckel, 526 U.S. 838, 845-47 (1999); Adams v. Holland, 330 F.3d 398, 403-05 (6th Cir. 2003) (holding that a discretionary appeal to the Tennessee Supreme Court is not required for exhaustion purposes under a state procedural rule).
The legal basis of the habeas claim must be the same as, or the "substantial equivalent" of, that presented to state courts. Picard v. Connor, 404 U.S. 270, 278 (1971). "[A] claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts which entitle the petitioner to relief." Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (citing Picard, 404 U.S. at 271). Exhaustion is completed, however, when the claim is appropriately presented, even if the state courts do not address it. Stanford v. Parker, 266 F.3d 442, 451 (6th Cir. 2001) (citing Harris v. Rees, 794 F.2d 1168, 1173-74 (6th Cir. 1986)).
2. Procedural Default Doctrine
A petitioner who has failed altogether to present a claim in the state courts, and who is now barred by a state procedural rule from returning with his claim to those courts, has met the technical requirements of exhaustion (i.e. there are no state remedies left to exhaust) and is deemed to have exhausted his state remedies, but to have done so by way of a procedural default. Coleman v. Thompson, 501 U.S. 722, 732 (1991). A petitioner who has actually presented his federal claim to the state courts but those courts decline to address it due to his failure to meet a state procedural requirement has committed a procedural default as well. See, e.g., Murray v. Carrier, 477 U.S. 478 (1986) (failure to raise claim on appeal); Reed v. Ross, 468 U.S. 1 (1984) (same).
For all types of procedural default, federal review is foreclosed, unless the habeas petitioner can show cause to excuse his failure to comply with the state procedural rule and actual prejudice resulting from the alleged constitutional violation. Coleman, 501 U.S. at 732.
Cause can be shown where interference by state officials rendered compliance with the rule impracticable, where counsel gave ineffective assistance in violation of the prisoner's right under the Sixth Amendment, or where the legal or factual basis of a claim was not reasonably available at the time of the procedural default. Carrier, 477 U.S. at 488 and 492. Cause may also be shown where the legal basis of a claim is so novel as to have been reasonably unavailable, but a petitioner cannot demonstrate cause merely by showing that his attorney failed to recognize the legal or factual basis of a claim or failed to raise it despite recognizing it. Reed, 468 U.S. at 16. Also, cause does not depend on the fact that counsel made errors or even the type of errors made by counsel; a prisoner bears the risk of any of counsel's errors that do not rise to the level of a constitutional deprivation. Carrier, 477 U.S. at 488.
Though prejudice has no precise content, it will not be satisfied by a prisoner who simply shows that trial errors created a possibility of prejudice. At a minimum, a petitioner must show that the errors "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original).
c. Miscarriage of Justice Exception
Meeting the "cause and prejudice" test is not required, however, where a petitioner submits new and reliable evidence, not presented at trial, to establish that a constitutional error has probably resulted in the conviction of a person who is actually innocent and, therefore, that failure to rule on the merits of the claim will result in a fundamental miscarriage of justice. Schlup v. Delo, 513 U.S. 298, 323 (1995). But only a truly extraordinary case implicates a fundamental miscarriage of justice. Id. at 314-15, 327-35.
With these principles in mind, the Court turns to those claims which respondent contends have been procedurally defaulted. For ease of discussion, some grounds have been addressed together.
A. Procedurally Defaulted Claims
1. Insufficient Presentments [Pet., Grounds one, two, eight].
Petitioner's first assertion in this category [Ground one], is that two presentments in his case were not signed by all Grand Jurors, as required by state law. Acknowledging that he never offered this claim to the state courts,*fn3 he faults his attorney for failing to raise the claim. As noted, attorney error may constitute cause, but only if it rises to the level of constitutionally ineffective assistance of counsel. Rust v. Zent, 17 F.3d 155, 161 (6th Cir.1994). Here, there are bald allegations of ineffective assistance, but no specific factual contentions to show that his attorney's performance was deficient and that prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 687 (1986). Absent these two elements, there can be no constitutionally ineffective assistance.
But even if the claim of cause were supported by more than skeletal contentions of ineffective assistance, the state trial court ruled that the charging instrument was "legally sound" and that counsel had not rendered ineffective assistance in connection with the alleged flawed presentments. [Addendum No. 20, Judge Beckner's Mem. Op. and Order of Jan. 25, 2002]. Where a state court has adjudicated a claim on the merits, habeas corpus relief is not warranted, unless the resulting decision was either contrary to, or involved an unreasonable application of, clearly established Federal law, or rested on an unreasonable determination of the facts in light of the evidence.
28 U.S.C. § 2254(d)(1) and (2). The trial court's decision with respect to counsel's representation was none of these things, and, thus, there is no ...