United States District Court, E.D. Tennessee, Knoxville Division
THOMAS A. VARLAN, Chief District Judge.
Gary Wayne Sutton ("Petitioner") was sentenced to life imprisonment and two years, to run consecutively, by a Tennessee jury, following his 1993 convictions for first-degree murder and setting fire to personal property. Petitioner has exhausted his appeals in the Tennessee Courts, and this Court denied his federal habeas corpus petition on September 29, 2011 [Docs. 28, 29]. This matter is now before the Court on remand from the Sixth Circuit. After reviewing the supplemental briefs filed by both parties, the applicable law, and, where relevant, the record of Petitioner's underlying conviction and habeas records, the Court will DENY Petitioner's claims.
I. Procedural Background
On February 24, 1993, Petitioner was convicted, along with co-defendant James Dellinger, of the first degree-degree murder of Connie Branam and felonious burning of personal property [Doc. 3]. Petitioner received a life sentence for the murder conviction, and a consecutive two-year sentence for the burning of personal property conviction [Doc. 3]. The convictions were affirmed on direct appeal to the Tennessee Court of Criminal Appeals, see State v. Sutton, No. 03C01-9403-CR-0090, 1995 WL 406953 (Tenn. Crim. App. July 11, 1995), perm. app. denied Jan. 22, 1996, and state post-conviction relief was subsequently denied. State v. Sutton, No. E2004-01068-CCA-R3-PC, 2006 WL 1679595 (Tenn. Crim. App. June 19, 2006), perm. app. denied Oct. 30, 2006.
Petitioner filed a habeas corpus petition, which the Court denied on September 29, 2011 [Docs. 28, 29]. In reaching this decision, the Court found that Petitioner had procedurally defaulted on some of his ineffective assistance of counsel claims by failing to properly exhaust them in the state proceedings [Doc. 28]. The Court also denied Petitioner's certificate of appealability [Doc. 29].
Petitioner subsequently filed a motion to stay the case and hold it in abeyance pending the Supreme Court's decision in Maples v. Thomas, 132 S.Ct. 912 (2012), and Martinez v. Ryan, 132 S.Ct. 1309 (2012), and a simultaneous motion to alter or amend the Court's judgment under Fed.R.Civ.P. 59(e) [Docs. 30, 31]. The Court denied Petitioner's motion to stay the case and his motion to alter judgment; however, the Court granted Petitioner's request to brief the procedural default issue under Martinez [Doc. 36]. The Court ultimately denied Petitioner's motion to alter or amend judgment finding that Martinez was inapplicable to Tennessee convictions, but granted a certificate of appealability [Doc. 42].
On appeal to the Sixth Circuit, the court found that Martinez and the Supreme Court's intervening decision in Trevino v. Thaler, 133 S.Ct. 1911 (2013), are applicable in Tennessee. See Sutton v. Carpenter, 745 F.3d 787 (6th Cir. 2014). The Sixth Circuit remanded the case to this Court to determine whether Petitioner is entitled to relief on his ineffective assistance of counsel claims. Id. at 796. The Court ultimately ordered the parties to file briefs on the ineffective assistance of counsel claims, the legal standard the Court should apply when analyzing these issues, and whether the Court is required to give deference to prior rulings under the Antiterrorism and Effective Death Penalty Act ("AEDPA") [Doc. 46].
Petitioner has moved to amend this Court's judgment, arguing that he can establish the requisite cause and prejudice to excuse the procedural default of his ineffective assistance of counsel claims because he received ineffective assistance of counsel during his state post-conviction proceedings [Doc. 51]. In his motion, Petitioner specifically seeks to reopen the following ineffective assistance of counsel claims: (1) trial counsel failed to object and appeal the manner in which the jury venire was comprised and the denial of individual voir dire ; (2) trial counsel failed to call Danny Sutton to bolster the defense theory of the case; (3) trial counsel failed to present testimony rebutting the prosecution theory of the case; (4) trial counsel failed to challenge the instruction that the jury could convict based on moral certainty; and (5) trial counsel failed to investigate and learn that jurors consulted the Bible during the deliberation process [Doc. 51].
In Martinez, the Supreme Court created "a narrow exception" to the general rule of Coleman v. Thompson that a habeas petitioner cannot use ineffective assistance of collateral review counsel as cause to excuse a procedural default. 501 U.S. 722, 756-57 (1991). The Supreme Court held that where a state's procedural law requires claims of ineffective assistance of counsel to be raised in an initial-review collateral proceeding, a procedural default will not bar a habeas court from hearing a substantial claim of ineffective assistance of trial counsel if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective. Martinez, 132 S.Ct. at 1320. The Supreme Court subsequently expanded the exception in Martinez, holding that where a "state['s] procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of counsel on direct appeal, [the] holding in Martinez applies." Trevino, 133 S.Ct. at 1921. The Sixth Circuit held in this case that Martinez, as expanded by Trevino, applies in Tennessee. Sutton, 745 F.3d at 795-96.
Martinez permits a petitioner to establish cause to excuse a procedural default of an ineffective assistance of trial counsel claim by showing that he received ineffective assistance by post-conviction counsel. See Martinez, 132 S.Ct. at 1320. This holding, however, does not dispense with the "actual prejudice" requirement established by the Supreme Court in Coleman. 501 U.S. at 750. To successfully establish cause and prejudice under Martinez and Trevino, a petitioner must show a substantial underlying claim of ineffective assistance of trial counsel. See Trevino, 133 S.Ct. at 1918; Martinez, 132 S.Ct. 1318-19. "To establish that his claim is substantial, ' a habeas petitioner must show that his post-conviction relief counsel was ineffective under Strickland v. Washington. ' That is, the petitioner must show both that his post-conviction counsel's performance was constitutionally deficient and that the petitioner was prejudiced by the deficiency." Thorne v. Hollway, No. 3:14-CV-0695, 2014 WL 4411680, at *22 (M.D. Tenn. Sept. 8, 2014) (quoting Clabourne v. Ryan, 745 F.3d 362, 376 (9th Cir. 2014)).
As part of showing a substantial claim of ineffective assistance of trial counsel, the petitioner must prove prejudice under Strickland . See McGuire v. Warden, Chillicothe Corr. Inst., 738 F.3d 741, 752 (6th Cir. 2013) ("To be successful under Trevino, [petitioner] must show a substantial' claim of ineffective assistance, and this requirement applies as well to the prejudice portion of the ineffective assistance claim." (internal citations omitted)). Under Strickland, a petitioner can prove prejudice by showing "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984). The "actual prejudice" requirement of Coleman and the prejudice requirement of Strickland overlap such that
in many habeas cases seeking to overcome procedural default under Martinez, it will be more efficient for the reviewing court to consider in the first instance whether the alleged underlying ineffective assistance of counsel was "substantial" enough to satisfy the "actual prejudice" prong of Coleman. If not, because the "cause and prejudice" standard is conjunctive rather than disjunctive, the reviewing court would have no need consider whether the petitioner has ...