United States District Court, M.D. Tennessee, Nashville Division
TODD CAMPBELL, District Judge.
Petitioner Elgene Porter, a state prisoner incarcerated at the Turney Center Industrial Complex in Only, Tennessee, has filed a pro se petition under 28 U.S.C. § 2254 (ECF No. 1), challenging his 2009 convictions in the Criminal Court for Rutherford County, Tennessee on charges of conspiracy to commit aggravated burglary, aggravated burglary, attempted aggravated robbery, aggravated rape, and two counts of aggravated kidnapping. The petitioner also requests the appointment of counsel. The respondent has filed an answer in opposition to the petition, along with portions of the underlying state-court record. The petition is ripe for review.
As set forth herein, the Court will dismiss with prejudice all but two of the petitioner's claims: (1) that counsel was constitutionally ineffective for failing to argue to the trial court or on appeal that the petitioner's kidnapping convictions violated due process; and (2) that trial counsel was ineffective for failing to investigate and pursue relief on the basis of an alleged exculpatory statement made by the rape victim at the sentencing hearing. Regarding these two claims, the Court will appoint counsel for the petitioner, who shall investigate the claims and provide additional briefing to the Court. The respondent will be given an opportunity to respond.
I. PROCEDURAL BACKGROUND
On May 14, 2009, the petitioner was found guilty by a Rutherford County jury on the charges referenced above (ECF No. 45-2, at 2-15 (verdict form)), and on July 20, 2009 he was sentenced to 3 years for conspiracy to commit aggravated burglary, 5 years for aggravated burglary and attempted aggravated robbery; and 22 years for aggravated rape, all to be served concurrently; and 10 years for each count of aggravated kidnapping, to be served consecutively to the remainder of the sentence and to each other, for a total effective sentence of 42 years' incarceration. (ECF No. 45-2, at 38-44 (judgments).) The conviction and sentence were affirmed on direct appeal. State v. Porter (" Porter I "), No. M2009-02443-CCA-R3-CD, 2011 WL 915673 (Tenn. Ct. Crim. App. March 14, 2011), perm. appeal denied (Tenn. May 25, 2011).
The petitioner filed a pro se petition in the state court for post-conviction relief on August 5, 2011, which incorporated seventeen separate grounds for relief on the basis of ineffective assistance of trial and appellate counsel in an attachment entitled "Additional Grounds." (ECF No. 45-19, at 3-54.) The trial court appointed post-conviction counsel (ECF No. 45-19, at 63), who filed an amended petition. (ECF No. 45-19, at 73-77.) The amended petition claimed relief on the grounds of eighteen other instances of allegedly ineffective assistance of trial counsel.
The trial court conducted a hearing on March 26, 2012 ( see ECF No. 45-20 (transcript)) and denied relief. (ECF No. 45-19, at 81-89.) That decision was affirmed on appeal as well. Porter v. State (" Porter II "), No. M2012-01139-CCA-R3-PC, 2013 WL 1197730 (Tenn. Ct. Crim. App. March 26, 2013), perm. appeal denied (Tenn. Sept. 11, 2013). The petitioner filed a petition to rehear, which the Tennessee Court of Criminal Appeals denied on April 11, 2013. (ECF No. 45-25.) The Tennessee Supreme Court denied review on September 11, 2013. (ECF No. 45-27.)
Petitioner Porter filed his petition under 28 U.S.C. § 2254, along with a supporting memorandum, in this Court on May 13, 2014 (based on the date-stamp by the prison mailroom, ECF No. 1, at 43). The respondent has filed an answer along with a complete copy of the underlying state-court record. The petition is timely, and this Court has jurisdiction.
II. STATEMENT OF FACTS
A. Facts Relating to Conviction
The Tennessee Court of Criminal Appeals summarized the testimony presented at a pretrial hearing and during trial as follows:
This case arises from a home invasion by three perpetrators on November 22, 2006. While robbery to recover a gambling debt was the apparent motive, one of the perpetrators sexually assaulted the female, adult victim ("the victim") during the home invasion....
Motion to Suppress Hearing
Detective Jeff Peach of the Smyrna Police Department testified that, on April 16, 2007, he interviewed the Defendant. The Defendant was in custody at the Rutherford County Sheriff's Office for alleged offenses he committed in Murfreesboro. Detective Peach was joined by Detective John Liehr, also with the Smyrna Police Department, and the interview was videotaped. At the outset of the interview, Det. Peach read the Miranda warnings form to the Defendant, and the Defendant was allowed to read the form himself. The Defendant, af[t]er being asked if he understood the warnings, signed the form and agreed to speak with the officers. Detective Peach stated that he followed standard procedure in interviewing the Defendant, that he had no reason to believe that the Defendant did not understand his rights, and that he thought that the Defendant was familiar with the court system because he had a criminal record.
Detective Peach confirmed that he made reference to the Murfreesboro case during the videotaped interview, stating that he only did so in order to reassure the Defendant that they were not there to interview him on those crimes. Detective Peach testified that he never made any promises to the Defendant about the Murfreesboro case in exchange for his cooperation. He admitted that he did mention the district attorney to the Defendant: "Basically just that no promises about them. Just saying that at some point this would go to the district attorney. That he wanted to have his story out to us." Detective Peach also informed the Defendant that whatever information he gave would be turned over to the district attorney for review. Detective Peach said he never attempted to make a "deal" with the Defendant, and the Defendant did not seem confused about his authority, or lack thereof, to make a deal.
Detective Peach acknowledged that he spoke with the Defendant on a subsequent occasion in order to clarify conflicting information from the brothers about the existence of an additional participant in the home invasion. According to Det. Peach, this second meeting was very brief.
Detective Liehr confirmed that he participated in interviewing the Defendant and validated Det. Peach's testimony about the Miranda rights waiver form. Detective Liehr testified that he did not make any promises to the Defendant or encourage him to talk in exchange for help with the district attorney on the Murfreesboro charges. Detective Liehr also said that the Defendant never appeared to be confused, upset, or emotional during the interview. Detective Liehr substantiated that, shortly after interviewing the Defendant, they interviewed the Defendant's twin brother, Eugene. Despite the conflicting information about a possible fourth person, Det. Liehr opined that the two statements "basically mesh[ed] together" and were substantially true.
The videotaped statement was admitted as an exhibit to the hearing. During the interview, the Defendant also gave a handwritten statement that was recorded.
The Defendant testified that, prior to the videotaped statement, Det. Peach came to speak with him three or four times and did not give him any Miranda warnings. According to the Defendant, Det. Liehr would always bring up the Murfreesboro charges in these conversations, and he was confused because he did not "understand which one they was really trying to get at me with." The Defendant testified that he wrote the handwritten statement prior to the videotaped interview, that he did not understand what he was doing when he signed the waiver of rights form, and that he did not feel that he gave the statement freely and voluntarily. When asked why he did not feel his statement was voluntarily given, the Defendant replied, "Because for one they both was coming to me at a point where I'm in fear of another case." The Defendant testified that the detectives promised to "work with the DA" if he gave them information about the home invasion: "That he won't be looking at me no more and that he got who he wanted to get which was Von."
On cross-examination, the Defendant admitted that he had been arrested approximately twelve times, but believed he had been convicted only once for burglary of an automobile. He pleaded guilty to the auto burglary charge because he did not "understand what [he] was doing." The Defendant also testified that, even though he had been arrested twelve times, he had never been given Miranda warnings prior to this videotaped statement. Moreover, he did not remember the detectives reading his Miranda warnings to him at the beginning of his statement but acknowledged his signature on the rights waiver form. He did dispute the date on the rights waiver form, believing that he was interviewed on a different day. When asked about his education, the Defendant responded that he graduated from Riverdale High School "Special Ed."
The Defendant stated that, although he did not request a lawyer on the videotape, he had previously asked for one. The Defendant also testified that the handwritten statement he gave was false, that he had only known of the plan to recover a gambling debt from the victim's husband after hearing it from "Von." As the district attorney attempted to review more details of the statement with the Defendant, the Defendant asserted his Fifth Amendment right and refused to answer any more questions. The trial court denied the Defendant's motion to suppress.
At trial, the State presented the victim as its first witness. On the evening of November 21, 2006, the victim and her two-year-old daughter (the "child victim") were at their home in Smyrna. Neither the victim's two stepsons nor her husband, a professional gambler, were at home that evening. Her husband had gone to play poker. After a routine evening, she and the child victim went to sleep in the victim's bed; between 1:30 and 2:00 a.m., she heard her small terrier barking. Believing it was her husband returning home, she got up out of bed, turned on the television so the barking would not wake the child victim, and then went to the bedroom door to let the dog out.
When she opened the door, she saw three men standing at the door pointing guns at her. According to the victim, two of three men were approximately the same height, and they were all wearing dark colored clothes, dark "hoodies, " long-sleeved dark shirts, dark (black or navy) ski-masks, and basic wool, work gloves. The men pushed her to the floor in the doorway of her bedroom, and one man bound her feet, wrists, and mouth with duct-tape. The dog kept barking loudly, and another man began to beat the dog. Almost immediately, the men began demanding money. Although the men were mostly covered by their clothing, the victim was able to see that two of the assailants were dark-skinned and that the other assailant was lighter-skinned.
After beating the dog until he went "limp, " one of the men carried the dog out of the room by the "nape of his neck[.]" One of the men placed pillows around the child victim on the bed in order to create "an enclosure" for her. The men continued to demand money, and two of the men began ransacking the house looking for money, while the other (a dark-skinned man) stayed and guarded the victim at gunpoint. While guarding the victim, the man fondled her, inserted his gloved finger into her vagina, ordered her to perform oral sex, and put his penis inside her vagina. He then placed the victim up on the bed with her daughter, who had begun to cry, and ordered her to use a vibrator on herself. As the men were leaving, they took a jar of money (containing approximately $50) and the victim's cell phone. They told the victim, "We're going another route. We're going to find your husband." The victim estimated that the ordeal lasted from one and one-half to two hours.
After the men left and some time had passed, the victim freed herself from the duct-tape, fled the residence with her daughter and dog, and went directly to the police station. At the police station, the victim detailed the incident to Officer James Ridley of the Smyrna Police Department, who prepared a report. The victim was transferred to Stonecrest Medical Center where a rape kit examination was performed. Other than the color of their skin and the clothing they were wearing, the victim could not identify her assailants.
Detective Dustin Fait, also with the Smyrna Police Department, was called in as the crime scene investigator. He first went to the hospital, where he spoke with the victim, took some photographs of her, and collected the remaining duct-tape off her person. Detective Fait left the hospital and went to the victim's residence to collect additional evidence. Once there, he located some clothing (two ski-masks and one jacket) on a nearby street. The initial jacket and ski-mask were found very close to one another; the additional ski-mask was found a little further down the road. Inside the house, Det. Fait also found additional pieces of duct-tape, a vibrator, and pillows arranged on the bed in a "border of some sort." Detective Fait found a safe that had been opened and two jewelry boxes that had been pillaged. Detective Fait lifted some latent fingerprints from several locations in the house; however, to Det. Fait's knowledge, no fingerprints were identifiable.
After the Defendant was developed as a suspect in the home invasion, he was interviewed by Det. Peach and Det. Liehr. An edited version of the videotape was played for the jury. After initially denying any involvement in the crime, the Defendant stated that he was recruited to commit the robbery by a Laotian man named "Salon Von." During the interview, the Defendant admitted that he went inside the victim's house and that he fondled the victim's breasts and inserted his finger into her vagina. The Defendant also made a written statement detailing his participation in the home invasion. Both the videotaped and written statements were entered into evidence.
The rape exam did not reveal the presence of any sperm or semen. However, the Tennessee Bureau of Investigation's crime laboratory did match the DNA profile collected from a ski-mask at the crime scene to swabs collected from the Defendant and his twin brother (who, because they are twins, have identical DNA).
Following the conclusion of the proof, the jury found the Defendant guilty of conspiracy to commit aggravated burglary, aggravated burglary, attempted aggravated robbery, aggravated rape, and two counts of aggravated kidnapping. The Defendant was acquitted of the cruelty to animals charge.
Porter I, 2010 WL 1644969, at *1-4 (footnote omitted).
B. Post Conviction Evidence
The Tennessee Court of Criminal Appeals summarized the evidence presented during the post-conviction appeal as follows:
At the post-conviction hearing, the Petitioner testified that he never discussed consecutive sentencing with his attorney at trial ("trial counsel"). Had he discussed the possibility of consecutive sentencing, it might have impacted his decision to accept or reject the State's twenty-three-year plea offer. He could not state definitely, however, that such knowledge of consecutive sentencing would have caused him to accept the State's offer. He maintained that, even though he was present at the scene of the incident, he was not guilty. Additionally, the Petitioner denied that trial counsel explained to him that he might be required to serve his sentence at 100%. He estimated that he met with trial counsel approximately three or four times. He denied that trial counsel discussed the fact that, if he were to be convicted of these indicted offenses, he would be required to register with the sex offender registry and would be on lifetime community supervision. The Petitioner stated that, prior to the charges related to this case, he had a conviction for automobile burglary.
The Petitioner remembered discussing with trial counsel the videotape of the Petitioner's statement to police. According to the Petitioner, trial counsel was going to allow the Petitioner to view the video, but the Petitioner never saw it until trial. Trial counsel told him "he didn't have the correct means to play the videotape, " so the Petitioner never saw it prior to trial. The Petitioner believed this videotape was instrumental to his conviction. On cross-examination, the Petitioner denied that the trial court viewed the videotape at the suppression hearing. The State asked the Petitioner, "Now, on the videotape you did admit to inserting your finger inside of the victim; is that correct?" The Petitioner stated that he was referring to a different case in the video. He acknowledged that the statement he wrote and signed for the police was true. On redirect examination, the Petitioner insisted that it was the redacted version of the videotape that he did not have the opportunity to view prior to trial.
The Petitioner denied that trial counsel discussed with him the elements of the offenses for which he was charged. However, on cross-examination, the Petitioner admitted that trial counsel explained to him what the State would have to prove. Regarding "alibi witnesses, " he remembered giving trial counsel "a couple" names, but trial counsel did not call witnesses to testify for the defense at trial. The Petitioner specified that the alibi witnesses were his mother and brother, Taneisha Robinson and Davon Dodd. On cross-examination, however, he acknowledged stating on the video statement that both of these individuals were in the vehicle outside the house where the incident occurred. The Petitioner explained that these witnesses would have testified to the following:
As far as Taneisha, hers was like to the fact to where what she did and did not say to the detectives.... And Davon Dodd was going to be the witness on the clothes and the Sketcher shoes that the person had on, that the woman said who did this to her had on.
The State questioned the Petitioner regarding his assertion that these witnesses were "alibi witnesses." The Petitioner admitted to being present at the Smyrna residence when this incident occurred.
The Petitioner stated that, prior to trial, he never had heard of Josh [Blattner] or seen his statement. Although trial counsel filed a motion to suppress the Petitioner's statement, the Petitioner denied that trial counsel discussed this motion with him. The Petitioner made available to trial counsel his academic record because of his learning disability as well as the names of people who could discuss it, but to his knowledge trial counsel never spoke with such persons. He completed the twelfth grade and was enrolled in special education classes.
The Petitioner denied that trial counsel ever discussed with him a cigar found at the crime scene. On cross-examination, however, he could not explain the cigar's significance as to the case or this proceeding. He remembered that DNA evidence was presented at trial but never discussed the admissibility of such evidence with trial counsel prior to trial. He was unaware until after his conviction of other DNA evidence of which trial counsel was aware. The Petitioner recalled trial counsel filing a motion for new trial but did not know at what point trial counsel became aware of this DNA evidence. He denied discussing anything with trial counsel related to his motion for new trial.
On cross-examination, the Petitioner acknowledged that he was wearing a toboggan at the scene, but he did not believe the toboggan to be "good evidence" because the toboggan revealed the DNA of either the Petitioner or the co-defendant, given that they were twins. The Petitioner believed that a specialist could have analyzed the DNA to discern whose DNA was on the toboggan. He relayed the information about this specialist to trial counsel, but he stated that trial counsel did nothing with this information. As a result of all these deficiencies on the part of trial counsel, the Petitioner believed that his trial was "negatively impacted."
The State called trial counsel to testify. He estimated that he had represented criminal defendants in approximately one hundred trials throughout his career. When he began representing the Petitioner, he was aware that the Petitioner had charges pending not only in this case but also in Murfreesboro. Therefore, he discussed with the Petitioner the possibility of consecutive sentencing and the minimum and maximum sentences he could receive. Trial counsel also explained to the Petitioner the types of crimes for which he was indicted and that some of the crimes carried a required service at 100%. He told the Petitioner, however, that the Petitioner might be able to obtain credit up to 15% such that it was possible for the Petitioner to serve at 85%. He remembered meeting with the Petitioner on "several occasions." Trial counsel could not say with "100 percent certainty" that he informed the Petitioner about the lifetime sex offender registry or community supervision for life. He believed that he probably would have discussed it with the Petitioner when explaining the aggravated rape charge.
Regarding the Petitioner's videotaped statement, trial counsel remembered showing the Petitioner the tape using a laptop computer. Before meeting with the Petitioner, trial counsel reviewed the videotape to note items of concern for discussion, such as the Petitioner's "admission that he had actually performed a digital penetration of the victim." He also was concerned particularly with the Petitioner's indication that the "victim derived some sort of pleasure from that." Trial counsel could not recall whether the redacted version of the tape was played at the suppression hearing. He confirmed that he was aware that the videotape was redacted and noted that the redaction was at his request in order to remove references to the Petitioner's prior offenses. Trial counsel believed the videotaped statement to be "a crucial part of the case, " which was why he sought to have it suppressed. He recalled telling the Petitioner, however, that suppressing the video would be difficult "because the officers conducted it in such a friendly manner."
Trial counsel testified that he reviewed with the Petitioner the charges for which the Petitioner was indicted. As to alibi witnesses, trial counsel stated that the Petitioner did not give him the name of Taneisha Robinson until trial. He recalled that the victim already "had testified that the person who had forced her to perform oral sex on him had on a pair of gray sweat pants." When trial counsel spoke with Robinson, Robinson informed trial counsel that she had seen the Petitioner on the night of the incident and that, when he left her residence, he was wearing boots and a gray sweat suit. Trial counsel then explained to the Petitioner that they could not call Robinson because she would confirm that the Petitioner was wearing gray sweat pants. On cross-examination, trial counsel clarified that the Petitioner gave him Robinson's name prior to trial but did not give him a phone number until the trial. He could not recall whether he reviewed a videotaped statement by Robinson prior to trial.
When trial counsel spoke with the Petitioner's brother about testifying, the brother told trial counsel not to call him because the Petitioner would not [sic] "not like what [he would] have to say." Accordingly, trial counsel did not call the Petitioner's brother to testify, either.
According to trial counsel, the Petitioner maintained until trial that he was not present at the residence where the incident took place. However, during deliberations, he heard the Petitioner tell a reporter "that the biggest mistake he made was going to the house that night." At that point, trial counsel realized that the Petitioner really had no alibi. Trial counsel agreed that the Petitioner's dishonesty with trial counsel hampered trial counsel's ability to defend the Petitioner. The Petitioner had told trial counsel that a third party was involved in the incident who never was caught and actually performed "all the bad stuff." Then, at the sentencing hearing, the Petitioner stated that he had fabricated that person.
The Petitioner's mother had informed trial counsel about the Petitioner's educational background and learning disability. As a result, trial counsel was particularly careful to help the Petitioner understand what he explained to the Petitioner. He knew that the Petitioner understood because the Petitioner would later relay the information to "other people."
Trial counsel stated that he discussed with the Petitioner the DNA on the toboggan matching the Petitioner and the co-defendant. He specifically remembered discussing that they could highlight to the jury the fact that "the State couldn't prove that it was him or his brother. Just one or the other." Trial counsel was not aware of technology that could differentiate the DNA of identical twins.
Regarding his overall representation of the Petitioner, trial counsel stated that he gave the Petitioner's case "a lot of attention." Because the Petitioner had never indicated that he wanted to do anything but try the case, trial counsel "attacked this case from the beginning as being a case that was going to be tried."
On cross-examination, trial counsel believed that the State "probably" made a plea offer but could not remember the specifics of the offer. However, he stated that "if there was an offer on the table [the Petitioner] knew about it." He did not recall the name, Josh Blackner [Blattner], or that this name was provided by the State with an attached statement. He also did not recall receiving a supplemental police report from the State notifying him of a cigar found at the scene. He recalled that the second toboggan and sweat shirt found had DNA not matching the Petitioner's DNA. He did not recall the DNA evidence revealing the presence of another person at the scene.
The post-conviction court denied the Petitioner relief, stating that the Petitioner failed to carry his burden of proof. The court stated, "I simply do not find your testimony credible in any way based on my recollection of what took place at the trial as well as your presentation today."
In its written order, the post-conviction court accredited trial counsel's testimony that he discussed with the Petitioner "consecutive sentencing, the statutory requirement of 100% service of certain counts of the indictment, and the elements of the offense." It also accredited trial counsel's testimony that he showed the videotaped interview to the Petitioner using trial counsel's laptop at the jail. Although trial counsel could not recall whether he discussed with the Petitioner the community supervision for life requirement, the post-conviction court once again found the Petitioner's testimony not credible and, therefore, found that the Petitioner failed to establish by clear and convincing evidence that they did not discuss this requirement. Alternatively, the court found that the Petitioner failed to establish prejudice by proving that, but for trial counsel's failure, the Petitioner would have accepted the guilty plea instead of going to trial. The post-conviction court noted that the Petitioner did not present evidence that he was offered a plea or what the specifics of that plea were.
Regarding the Petitioner's allegations that trial counsel was deficient in not calling Taneisha Robinson or Josh Blattner as witnesses, the post-conviction court noted that neither of these individuals was called to testify at the evidentiary hearing. The court determined that the Petitioner failed to establish deficient performance on the part of trial counsel in this regard or resulting prejudice.
The post-conviction court next addressed the Petitioner's contention that trial counsel failed to support his motion to suppress with a memorandum "based on the Petitioner's alleged inability to comprehend procedures and proceedings." The court found that the Petitioner failed to "submit his academic record" or "call any witness to testify regarding his alleged inability" or his academic record.
Finally, as to the Petitioner's claims regarding DNA evidence, the post-conviction court found that, because the Petitioner failed to support these claims with any evidence other than his own testimony, the Petitioner failed to establish these allegations. Thus, the post-conviction court denied relief. The Petitioner timely appealed, alleging ineffective assistance of counsel.
Porter II, 2013 WL 1197730, at *3-7 (footnote omitted).
III. ISSUES PRESENTED FOR REVIEW
The Court understands the petitioner to be raising a total of thirty-four claims of ineffective assistance of trial and appellate counsel.
First, the petitioner identifies the following eighteen claims of ineffective assistance of trial counsel as having been raised in the amended post-conviction petition filed by counsel (designated by the petitioner as Issues A through R):
(1) failure to inform petitioner concerning the possibility of consecutive sentencing (ECF No. 1, at 11);
(2) failure to inform petitioner that any sentence received for Counts 4, 5, and 6 would have to be served at 100%, pursuant to statute (ECF No. 1, at 11);
(3) failure to inform petitioner that lifetime registration and community supervision were statutorily mandated for Count 4 (ECF No. 1, at 11);
(4) failure to advise petitioner of the elements of the offense of aggravated rape and what the State would have to prove to support the charge (ECF No. 1, at 11);
(5) failure to advise petitioner of the elements of the offense of aggravated kidnapping and what the State would have to prove to support the kidnapping charges (ECF No. 1, at 11);
(6) failure to counsel petitioner regarding a redacted videotape of his police interview or to discuss the possibility of its being used as evidence, the redactions, or the videotape's potential effect on a jury (ECF No. 1, at 11):
(7) failure to offer the potentially favorable testimony of Taneisha Robinson regarding the petitioner's whereabouts after notifying the state of counsel's intent to use her as an alibi witness (ECF No. 1, at 12);
(8) failure to interview or offer the potentially favorable testimony of Josh Blattner regarding statements he made to the police on October 8, 2008 (ECF No. 1, at 14);
(9) failure to properly support a motion to suppress petitioner's statement to the police with an "appropriate memorandum" citing the best-evidence rule and referencing the petitioner's inability to comprehend proceedings and academic record (ECF No. 1, at 15);
(10) failure to investigate the presence of potentially exculpatory physical evidence found at the crime scene and recorded in Officer Jamie C. Murphy's October 2, 2008 report (ECF No. 1, at 17);
(11) failure to investigate the chain of custody of the evidence presented at trial (ECF No. 1, at 18);
(12) failure to prepare for specific scientific evidence despite being on notice that the state intended to present the testimony of DNA experts (ECF No. 1, at 18);
(13) failure to challenge the sufficiency of the evidence by failing to prepare for DNA proof relating to "identical twins and the interchangeable nature of such evidence" (ECF No. 1, at 18);
(14) failure to conduct voir dire of State experts responsible for DNA testing (ECF No. 1, at 18);
(15) failure to "challenge the testimony regarding the combination of samples from the clothing, to get sample (sic) linking Petitioner to the items of ...