The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
Clayton E. Turner, a prisoner in the Northeast Correctional Complex [NECX], brings this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging the legality of his confinement under several state court convictions. Respondent Howard Carlton, Warden at the NECX, has answered the petition, has submitted copies of petitioner's state court record, and has argued that, for various reasons, none of the grounds offered in petitioner's pleading will support the granting of the writ. [Doc. 5]. Petitioner has filed a reply, maintaining that, indeed, each ground raised in his petition entitles him to habeas corpus relief. [Doc. 9].
In 1997, a jury in the Criminal Court for Sullivan County, Tennessee convicted petitioner of rape of a child, incest, and assault by offensive touching. For these offenses, the trial court imposed an effective 31-year sentence (twenty-five years for the rape, a consecutive six years for the incest, and a concurrent six months for the assault). Petitioner was unsuccessful on direct appeal [Add. Nos. 1-5]; in petitioning for post-conviction relief [Addenda Nos. 6-10]; and in his pursuit of relief under Tennessee's Post-Conviction DNA Analysis Act. [Add. Nos. 11-15]. A prior federal habeas corpus petition, filed during the pendency of the state post-conviction appeal, was dismissed for failure to exhaust. Turner v. State of Tennessee, NO. 2:98-CV-153 (E.D.Tenn. May 19, 1998). Petitioner now applies for a federal writ of habeas corpus, asserting, as grounds for relief, an invalid confession, a due process violation, insufficiency of evidence (assault conviction), an improper jury instruction, an evidentiary error, excessive punishment, ineffective assistance of counsel, and the denial of a DNA expert and DNA testing.
According to the proof presented at trial, on July 30, 1996, a twelve-year-old girl, MK, and her ten-year old sister, RK, were visiting their mother in the two-bedroom mobile home she shared with her husband, the petitioner, and their two sons.*fn1 MK slept on a sofa in the living room and RK with her mother and petitioner in one of the bedrooms. In the wee hours of the morning, RK awoke and found herself on petitioner's side of the bed, with his hand on her naval and her underwear pulled down to her knees. She quickly rose from the bed, pulled up her underwear, went to the bathroom, and then went into the living room to lie down beside her sister on the sofa. Petitioner followed her into the living room and instructed her to go back to the bedroom. RK obeyed and fell asleep immediately.
In the meantime, MK woke up and discovered that petitioner was lying on the sofa beside her. She attempted to get up, but petitioner pulled her back down, telling her that "it was all right." However, he permitted her to go to the bathroom when she insisted. MK stayed in the bathroom for awhile before petitioner entered and told her that she was "pretty" and "a bunch of other stuff." She demanded that he leave and he complied, returning to his bedroom. She went back to the sofa and attempted to go back to sleep.
Soon, petitioner returned to the sofa and tried to gag MK with a bandana. She struggled and he offered her twenty-five dollars for her cooperation. She refused, whereupon petitioner put a towel over her mouth, ripped off her underwear, and forced her to engage in sexual intercourse. When she continued to struggle, petitioner threatened to kill everyone in the mobile home. After the rape, petitioner retrieved his clothing from the bedroom and told her to help him put the clothes into garbage bags and carry them to his car. As he left, petitioner told MK that it was her fault that he would never see his sons again.
When her mother awakened, MK reported the rape to her and her mother called the police. Both girls were taken to the hospital, where they were examined by an emergency room physician. The doctor saw no signs of sexual assault with respect to RK. However, when he performed a pelvic examination of MK, he observed that her vagina was reddened, that its entrance was bruised, and what appeared to be semen in the vaginal area-conditions that were consistent with recent sexual intercourse.
Later tests established that the DNA extracted from the semen matched petitioner's DNA.
The discussion is divided into three sections: non-cognizable claims, applicable law, and grounds for relief.
These claims have been combined because they all involve the same subject matter-petitioner's collateral proceedings in state court.
1. Denial of DNA Expert [Pet., Ground 8].
2. Denial of DNA Testing [Id., Ground 9].
3. Denial of Expert Assistance [Id., Ground 10].
Petitioner alleges that he was denied a DNA expert, DNA testing and unspecified expert assistance during his DNA post-conviction proceedings. However, there is no constitutional requirement that states provide an appeal process for criminal defendants seeking to review alleged trial court errors. Evitts v. Lucey, 469 U.S. 387, 393 (1985). Nor is there a constitutional duty to provide for post-conviction relief since "[p]ostconviction relief is even further removed from the criminal trial than is discretionary direct review," as "[i]t is not part of the criminal proceeding itself, and it is in fact considered to be civil in nature." Pennsylvania v. Finley, 481 U.S. 551, 556-57 (1987) (citation omitted). Thus, petitioner's assertions with regard to the post-conviction court's rulings are not cognizable habeas corpus claims. Kirby v. Dutton, 794 F.2d 245, 246 (6th Cir. 1986) (finding that claims involving constitutional violations during post-conviction proceedings did not relate to a prisoner's detention and, therefore, were not cognizable under § 2254); see also Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007) ("[T]he Sixth Circuit has consistently held that errors in post-conviction proceedings are outside the scope of federal habeas corpus review.") (citing, inter alia, Kirby, 794 F.2d at 247).
1. Procedural Default Doctrine
Under 28 U.S.C. § 2254(b) (1), a state prisoner's petition for a writ of habeas corpus will not be granted unless he has exhausted his available state court remedies. Exhaustion requires that a petitioner fairly present his federal claim first to the state courts, in a procedural context where a merits review is likely. Castille v. Peoples, 489 U.S. 346, 351 (1989). A petitioner who has failed in this regard 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, thus, 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, which have declined 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. To show prejudice, a petitioner must establish 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).
2. Review of Adjudicated Claims
The standard which controls the review of adjudicated claims is found in 28 U.S.C. 2254(d). Under this standard, a district court may not grant a writ of habeas corpus for any claim adjudicated on the merits in state court unless the adjudication resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d). Also, a state court's findings of fact are presumed to be accurate and a petitioner bears the burden of rebutting the presumption by clear and convincing evidence. Spisak v. Mitchell, 465 F.3d 684, 691 (6th Cir. 2006) (citing 28 U.S.C. § 2254(e)(1)).
With these principles in mind, the Court turns to the remaining claims which respondent contends do not justify issuance of the writ because they have been procedurally defaulted and/or adjudicated by the state courts and, therefore, subject to the limitations dictated by 28 U.S.C. § 2254(d).
C. The Grounds for Relief
Petitioner confessed the rape to law enforcement officials and later moved to suppress his confession. The motion was denied and the statement was admitted at trial. Petitioner now claims that its admission was constitutional error.
a. Procedural Default Argument
Respondent argues that petitioner did not present this ground to the state courts on a constitutional basis, since he did not cite to provisions of the Constitution or to cases that might have alerted the state court to the alleged federal nature of the claim. Respondent further argues that the claim cannot now be presented to those courts, given that all state remedies are foreclosed to petitioner, and that this constitutes a procedural default.
Petitioner counters that he did not commit a procedural default, insisting that he, in fact, presented the claim in a federal context and also that the state courts considered it in that light. The Court agrees with petitioner.
A claim is fairly presented, inter alia, by expressing it in terms so specific as to allege a denial of a distinct constitutional right or by supporting it with facts "well within the mainstream of constitutional law." McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000) (citing Franklin v. Rose, 811 F.2d 322, 324-25 (6th Cir. 1987). In his brief on direct appeal, petitioner phrased this ground in such a manner as to signal to the state courts that he was claiming that his Miranda waiver and subsequent confession were invalid and also by constructing this ground on a pattern of facts well within the mainstream of the law concerning the validity of Miranda waivers. Further, the Tennessee Court of Criminal Appeals read petitioner's submission as advancing a claim that his confession violated the rule in Miranda v. Arizona, 384 U.S. 436 (1966), and, more important, it resolved that very claim. A petitioner meets the fair presentation requirement if the state court rules on the merits of his claim. Gentry v. Lansdown, 175 F.3d 1082, 1083 (8th Cir. 1999) (citing Castille v. Peoples, 489 U.S. 346, 351 (1989)).
In this case, the Court concludes that petitioner exhausted his claim by fairly presenting it to the state courts. And because petitioner fairly presented the claim to the state courts, he did not procedurally default it. Finally, because the claim was ruled upon by the state courts, it will be reviewed under the "adjudicated claims" standard in § 2254(d) and (e).
b. Deferential Review Argument
The day after the rape, petitioner was located at Woodridge, a psychiatric hospital, and taken to the Sullivan County Sheriff's Department, where he confessed. In his statement, he acknowledged that he had engaged in sexual intercourse with MK, but denied touching or sexually assaulting her younger sister. He also related that, before his admission to the mental hospital, he had undergone blackouts and had been controlled by someone named "Jack," who had directed his actions and forced him to watch pornographic movies. Thereafter, petitioner was booked into the jail and placed on a suicide watch. Petitioner sought to suppress this statement, but it was introduced at trial, over his objection. Petitioner now challenges its admission as unconstitutional, pointing to the record, which, he maintains, encompasses a great deal of evidence showing that he was incompetent at the time of the statement and, thus, incapable of understanding and knowingly waiving his rights.
The rule articulated in Miranda v. Arizona, 384 U.S. 436 (1966), requires law enforcement officers to advise a suspect during custodial interrogation that "he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has the right to the presence of an attorney, either retained or appointed." Id., at 444. The remedy for a Miranda violation is the exclusion, during the prosecution's case-in-chief, of the statement stemming from the custodial interrogation. Id., 384 U.S. at 444.
However, a defendant validly may waive his constitutional rights if he does so voluntarily, knowingly, and intelligently. Ibid. To be voluntary, the waiver must be a free and deliberate choice, made with full consciousness of the nature of the right being waived and the consequences attendant to the waiver. Moran v. Burbine, 475 U.S. 412, 421 (1986). Thus, to be valid the waiver must be: 1) "the product of a free and deliberate choice, rather than intimidation, coercion or deception" [the voluntary component], and 2) "made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it" [the knowing and intelligent component]. Id. While both components of the waiver inquiry must be present to find a valid Miranda waiver, petitioner does not allege that his waiver was not voluntary, only that it was unknowing.
Petitioner's claim that his confession was inadmissible because he was incompetent to waive his self-incrimination right is governed by Miranda. See Dickerson v. United States, 530 U.S. 428, 432 (2000) (holding that Miranda and its progeny "govern the admissibility of statements made during custodial interrogation in both state and federal courts"). When the claim was presented to the state courts, those courts cited to Miranda and to other cases involving the validity of a waiver of Miranda rights as the applicable law. State v. Turner, No. 03C01-9805-CR-00176, 1999 WL 817690, *8 (Tenn. Crim. App. Oct. 6, 1999), perm. app. denied (Tenn. 2000). There is no question that the trial court and the Tennessee Court of Criminal Appeals identified Miranda, ...