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Hill v. Carlton

March 3, 2008

JUAN A. HILL
v.
HOWARD CARLTON, WARDEN



The opinion of the court was delivered by: J. Ronnie Greer United States District Judge

MEMORANDUM OPINION

I. Introduction

In 1997, petitioner Juan A. Hill was convicted by a jury in the Washington County, Tennessee Criminal Court for rape of a child, receiving a 35-year prison sentence for this offense. Following his fruitless efforts to obtain relief from his conviction in the Tennessee courts, he filed this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254, alleging that he is confined in violation of his constitutional rights. Respondent submitted an answer/response, arguing that petitioner is not entitled to habeas corpus relief, and the matter was referred to United States Magistrate Judge Dennis H. Inman for a report and recommendation.

Following a review of the petition, the answer/response, and other filings of the parties, Judge Inman submitted his report and recommendation. The Magistrate Judge recommends that the Court deny issuance of the writ of habeas corpus and dismiss the petition. Petitioner has filed timely objections. See Fed. R. Civ. P. 72(b).

Once a careful and complete review of the findings and recommendations has been conducted, a district judge may accept, reject or modify the magistrate judge's report and recommendation. 28 U.S.C. § 636(b ). The Court has reviewed de novo the legal conclusions and factual findings in the magistrate judge's report to which petitioner has filed specific objections. See 28 U.S.C. § 636(b)(1)(c); Flournoy v. Marshall, 842 F.2d 875 (6th Cir. 1988). The Court now finds there was no error in the report, and, for the following reasons, will ADOPT the recommendation that the writ be DENIED and that this petition be DISMISSED. The Court addresses each objection individually.

II. Petitioner's Objections

Petitioner raised nine claims for relief in his petition. The magistrate judge recommends that, for various reasons, each claim be rejected. Petitioner objects to all recommendations.

A. Denial of Access to the Courts/ Right to Appeal [Claim one]

In this claim, petitioner asserted that errors on the part of his post- conviction counsel prejudiced him and that he was denied access to the courts when his pro se brief (in which he raised issues his post-conviction attorney did not present) was not accepted by the state appellate court. The Magistrate Judge recommended that this claim be dismissed. Petitioner argues that he did not commit a procedural default-an argument which misses the mark entirely.

Judge Inman recommended that this claim be denied because habeas corpus relief does not lie for a claim of error on the part of post-conviction counsel, not because of a procedural default. Judge Inman's recommendation is legally irrefutable. Petitioner has no constitutional right to counsel during state collateral proceedings, Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), and, therefore, claims of ineffective assistance of post-conviction counsel and deficiencies in state post-conviction proceedings are not recognizable on habeas corpus review. 28 U.S.C. § 2254(I); Coleman v. Thompson, 501 U.S. 722, 752 (1991); Kirby v. Dutton, 794 F.2d 245, 247 (6th Cir. 1986).

The objection will be OVERRULED.

B. Ineffective Assistance - Jury Venire [Claim two]

According to petitioner, his attorney gave him ineffective assistance by failing to object to the composition of the jury venire or to raise it as an issue on appeal. The Magistrate Judge, finding that the claim was barred by procedural default, recommended that it be rejected.

Petitioner argues that, contrary to Judge Inman's finding, he did not commit a procedural default because he fairly presented the claim by raising it in a pro se supplemental brief during his post-conviction appeal. This, he suggests, is sufficient to satisfy the requirement that he exhaust his habeas claim by offering the state ...


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