United States District Court, W.D. Tennessee, Eastern Division
ORDER OF DISMISSAL, DENYING CERTIFICATE OF
APPEALABILITY, CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH, AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
DANIEL BREEN CHIEF UNITED STATES DISTRICT JUDGE
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.)
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.
STATE COURT PROCEDURAL HISTORY
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).
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).
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).
Exhaustion and Procedural Default
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” 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.
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)). 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).
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).
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;
(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)).
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).
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. 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.
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.
PETITIONER'S FEDERAL HABEAS CLAIMS
§ 2254 petition, Davis raises the following
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
c. failing to discover the police department's
maintenance record requirement for repairs done on fleet
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.
ANALYSIS OF PETITIONER'S CLAIMS