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Davis v. Cooper

United States District Court, W.D. Tennessee, Eastern Division

November 7, 2016

KENNETH LYLE DAVIS, Petitioner,
v.
ROBERT E. COOPER, JR. Respondent.

          ORDER OF DISMISSAL, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          J. DANIEL BREEN CHIEF UNITED STATES DISTRICT JUDGE

         On June 7, 2013, Petitioner Kenneth Lyle Davis, who is currently on parole in Milan, Tennessee, filed a petition pursuant to 28 U.S.C. § 2254, a memorandum in support, and supporting exhibits. (Petition (“Pet.”), ECF No. 1, Memorandum (“Mem.”) in Support (“Supp.”), ECF Nos. 1-1 & 1-2, Exhibits (“Ex.”), ECF No. 1-3.) Petitioner paid the filing fee. (Receipt, ECF No. 2.) On October 22, 2013, the Court directed Respondent, Robert E. Cooper, Jr., then Attorney General of Tennessee, to file a response to the petition. (Order, ECF No. 4.) On December 13, 2013, Respondent filed the state court record (Record (“R.”), ECF No. 7.) and on December 16, 2013, an answer. (Answer, ECF No. 8.) On January 8, 2014, Davis filed a reply. (Reply, ECF No. 9.)

         As is more fully discussed below, the issues raised here by Petitioner fail because the state court identified and applied the correct governing legal principles from federal law. Therefore, the petition is DISMISSED.

         I. STATE COURT PROCEDURAL HISTORY

         On May 1, 2007, a grand jury in Madison County, Tennessee indicted Davis on one count of possession of methamphetamine with the intent to sell and/or deliver, one count of possession of drug paraphernalia, one count of driving on a cancelled, suspended, or revoked license, and one count of reckless driving. (R., Indictments, ECF No. 7-1 at PageID 102-06.) On September 27, 2007, a jury trial began in Madison County Circuit Court and concluded with the jury convicting Davis of all counts. (Trial Transcript (“Tr.”), ECF No. 7-2 at PageID 160, 277-79.) The trial court sentenced him to an effective ten-year sentence, to be served consecutively to a prior sentence. (R., Judgments, ECF No. 7-1 at PageID 136-39.) Davis' motion for a new trial (Mot., ECF No. 7-1 at PageID 140) was denied on January 15, 2008. (R., Order, ECF No. 7-1 at PageID 144.) He filed a timely notice of appeal. (R., Notice of Appeal, ECF No. 7-1 at PageID 148.) The Tennessee Court of Criminal Appeals (“TCCA”) affirmed the trial court's judgments. State v. Davis, No. W2008-00226-CCA-R3-CD, 2009 WL 160927 (Tenn. Crim. App. Jan. 23, 2009), perm. app. denied (Tenn. June 15, 2009).

         On April 13, 2010, Davis filed a pro se petition in Shelby County Criminal Court pursuant to the Tennessee Post-Conviction Procedure Act, Tenn. Code Ann. §§ 40-30-101 to -122. (R., Pet. for Post-Conviction Relief, ECF No. 7-16 at PageID 606-37.) On June 3, 2010, he filed an amended petition. (R., First Amended (“Am.”) Pet., ECF No. 7-16 at PageID 652-67.) On March 1, 2011, Petitioner filed a second amended petition. (R., Second Am. Pet., ECF No. 7-16 at PageID 696-709.) His motion seeking permission to file a third amended petition (R., Motion (“Mot.”), ECF No. 7-16 at PageID 747-51) was denied. (Post-conviction Tr., ECF No. 7-19 at PageID 819-20.) After conducting an evidentiary hearing, the post-conviction court entered its order denying relief on September 12, 2011. (R., Order, ECF No. 7-16 at PageID 759-64.) The TCCA affirmed the denial of relief. Davis v. State, No. W2011-02049-CCA-R3-PC, 2012 WL 3156593 (Tenn. Crim. App. Aug. 2, 2012), perm. app. denied (Tenn. Dec. 13, 2012).

         II. LEGAL STANDARDS

         The statutory authority for federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). A federal court may grant habeas relief to a state prisoner “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

         A. Exhaustion and Procedural Default

         A federal court may not grant a writ of habeas corpus on behalf of a state prisoner unless, with certain exceptions, the prisoner has exhausted available state remedies by presenting the same claim sought to be redressed in a federal habeas court to the state courts pursuant to 28 U.S.C. § 2254(b) and (c). Cullen v. Pinholster, 563 U.S. 170, 181 (2011). The petitioner must “fairly present”[1] each claim to all levels of state court review, up to and including the state's highest court on discretionary review, Baldwin v. Reese, 541 U.S. 27, 29 (2004), except where the state has explicitly disavowed state supreme court review as an available state remedy, O'Sullivan v. Boerckel, 526 U.S. 838, 847-48 (1999). Tennessee Supreme Court Rule 39 eliminated the need for a habeas petitioner to seek review in the Tennessee Supreme Court and the presentment of the claim to the Court of Criminal Appeals by the litigant shall “be deemed to have exhausted all available state remedies.” Adams v. Holland, 330 F.3d 398, 402 (6th Cir. 2003); see Smith v. Morgan, 371 F. App'x 575, 579 (6th Cir. 2010).

         There is also a procedural default doctrine ancillary to the exhaustion requirement. See Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000) (noting the interplay between the exhaustion rule and the procedural default doctrine). If the state court decides a claim on an adequate and independent state ground, such as a procedural rule prohibiting the state court from reaching the merits of the constitutional claim, a petitioner ordinarily is barred from seeking federal habeas review due to the procedural default doctrine. Wainwright v. Sykes, 433 U.S. 72, 81-82 (1977); see Walker v. Martin, 562 U.S. 307, 315 (2011) (“A federal habeas court will not review a claim rejected by a state court if the decision of the state court rests on a state law ground that is independent of the federal question and adequate to support the judgment”) (internal quotation marks and citation omitted)).[2] In general, however, “we may only treat a state court order as enforcing the procedural default rule when it unambiguously relied on that rule.” Peoples v. Lafler, 734 F.3d 503, 512 (6th Cir. 2013).

         If a petitioner's claim has been procedurally defaulted at the state level, the petitioner must show cause to excuse his failure to present the claim and actual prejudice stemming from the constitutional violation or, alternatively, that a failure to review the claim will result in a fundamental miscarriage of justice. Schlup v. Delo, 513 U.S. 298, 320-21 (1995); Coleman v. Thompson, 501 U.S. 722, 750 (1991). The latter showing requires a petitioner to establish that a constitutional error has probably resulted in the conviction of a person who is actually innocent of the crime. Schlup, 513 U.S. at 321; see also House v. Bell, 547 U.S. 518, 536-539 (2006) (restating the ways to overcome procedural default and further explaining the actual innocence exception).

         B. Merits Review

         Pursuant to Section 2254(d), where a claim has been adjudicated in state courts on the merits, a habeas petition should only be granted if the resolution of the claim:

(1) 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
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2). Petitioner carries the burden of proof for this “difficult to meet” and “highly deferential [AEDPA] standard, ” which “demands that state-court decisions be given the benefit of the doubt.” Cullen, 563 U.S. at 181 (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011), and Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).

         Review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Cullen, 563 U.S. at 182. A state court's decision is “contrary” to federal law when it “arrives at a conclusion opposite to that reached” by the Supreme Court on a question of law or “decides a case differently than” the Supreme Court has “on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). An “unreasonable application” of federal law occurs when the state court “identifies the correct governing legal principle from” the Supreme Court's decisions “but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 412-13. The state court's application of clearly established federal law must be “objectively unreasonable” for the writ to issue. Id. at 409. The writ may not issue merely because the habeas court, “in its independent judgment, ” determines that the “state court decision applied clearly established federal law erroneously or incorrectly.” Renico v. Lett, 559 U.S. 766, 773 (2010) (citing Williams, 529 U.S. at 411).

         There is little case law addressing the standard in § 2254(d)(2) when a decision was based on “an unreasonable determination of facts.” However, in Wood v. Allen, 558 U.S. 290, 301 (2010), the Supreme Court stated that a state-court factual determination is not “unreasonable” merely because the federal habeas court would have reached a different conclusion.[3] In Rice v. Collins, 546 U.S. 333 (2006), the Court explained that “[r]easonable minds reviewing the record might disagree” about the factual finding in question, “but on habeas review that does not suffice to supersede the trial court's . . . determination.” Rice, 546 U.S. at 341- 42.

         The Sixth Circuit has described the § 2254(d)(2) standard as “demanding but not insatiable” and emphasized that, pursuant to § 2254(e)(1), the state court factual determination is presumed to be correct absent clear and convincing evidence to the contrary. Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir. 2010). A state court adjudication will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding. Id.; see also Hudson v. Lafler, 421 F. App'x 619, 624 (6th Cir. 2011) (same).

         III. PETITIONER'S FEDERAL HABEAS CLAIMS

         In the § 2254 petition, Davis raises the following issues[4]:

1. The evidence was insufficient to support his convictions for possession of methamphetamine with intent to sell and/or deliver and for possession of drug paraphernalia (Pet., ECF No. 1 at PageID 5); and
2. Trial counsel provided ineffective assistance by:
a. failing to interview Sergeant Barnes before the suppression hearing and trial (id. at PageID 8);
b. failing to investigate the audio/video mechanics of Sergeant Barnes' on-board video/audio system (id.); and
c. failing to discover the police department's maintenance record requirement for repairs done on fleet vehicles. (Id.)

         Issue 1 was raised on direct appeal. (R., Brief (“Br.”) of the Appellant, ECF No. 7-9 at PageID 476.) Issues 2 (a)-(c) were presented to the TCCA in the post-conviction appeal. (R., Br. of the Appellant, ECF No. 7-21 at PageID 1098-99.) Each claim is addressed below.

         IV. ANALYSIS OF PETITIONER'S CLAIMS

         A. Sufficiency ...


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