United States District Court, M.D. Tennessee, Nashville Division
WAVERLY D. CRENSHAW, JR., UNITED STATES DISTRICT JUDGE
Freeman Ray Harrison, a state prisoner serving an effective
sentence of 20 years for two counts of aggravated sexual
battery and one count of reckless endangerment, has filed a
pro se petition under 28 U.S.C. § 2254 for the
writ of habeas corpus (Doc. No. 1), along with a memorandum
in support. (Doc. No. 2.) Respondent has filed an answer and
relevant portions of the state court record. (Doc. Nos. 14,
19, 23.) Petitioner has filed a reply (Doc. No. 28), and this
matter is fully briefed and ripe for review. For the reasons
set forth below, the Petition will be denied.
BACKGROUND AND PROCEDURAL HISTORY
Rutherford County jury convicted Petitioner on September 17,
2010, of two counts of aggravated sexual battery and one
count of reckless endangerment. (Doc. No. 14-1, at 1.) On
December 17, 2010, the trial court sentenced Petitioner to 10
years on each count of aggravated sexual battery, and 11
months 29 days for reckless endangerment. (Doc. No. 14-1, at
48-49, 52.) The aggravated sexual battery sentences were
ordered to be served consecutively, and the reckless
endangerment was ordered to run concurrently, giving
Petitioner a total effective sentence of 20 years. (Doc. No.
14-1, at 48-49, 52.) The Criminal Appeals Court affirmed the
convictions and sentences on September 27, 2013. (Doc. No.
14-17); State v. Harrison, No.
M2011-01803-CCA-R3-CD, 2013 WL 5436711 (Tenn. Ct. Crim. App.
May 14, 2013), appeal denied (Tenn. Feb. 12, 2014).
The Tennessee Supreme Court denied Petitioner's
application to appeal on February 12, 2014. Id.
December 1, 2014, Petitioner filed a pro se petition
for post-conviction relief. (Doc. No. 14-20, at 1.) Counsel
was appointed (Doc. No. 14-20, at 35), but did not file an
amended petition. The trial court held a hearing on February
9, 2015, and denied relief on February 10, 2015. (Doc. No.
14-20, at 42.) The Criminal Appeals Court affirmed on January
12, 2016. (Doc. No. 14-26); Harrison v. State. No.
M2015-00454-CCA-R3-PC, 2015 WL 4737430 (Tenn. Ct. Crim. App.
Aug. 11, 2015). Petitioner did not seek discretionary review
in the Tennessee Supreme Court.
filed hispro se Petition under 28 U.S.C. § 2254
in this Court on March 14, 2016, and Respondent acknowledges
that it is timely. (Doc. No. 23, at 2.)
STATEMENT OF FACTS
Criminal Appeals Court on post-conviction appeal summarized
the relevant evidence in this the case as follows:
S.L. testified that, at the time of trial, she was seven
years old.... S.L. testified that she had a grandmother she
called "[N]ana" and a grandfather she called
"[P]eepaw." She identified the [Petitioner] as
S.L. recalled a time when she and her baby sister were in the
[Petitioner's car with him. She said she was sitting in
the back of his car on her "very old car seat" and
that the [Petitioner] was driving. As they were driving, the
[Petitioner] told her that she could come to the front of the
car. At one of the red lights, S.L. moved to the front seat
of the car and sat next to the [Petitioner]. She said she was
no longer, at this point, in a car seat.
S.L. testified that, during the drive, the [Petitioner] took
his penis out of the hole in his pants. She said he
"shaked it" and then "squeezed it" and
then "white stuff came out." She said the
"white stuff looked like "pee." S.L. said that
"[w]hen he let [the white stuff] go, it like just sucked
in there." S.L. said, later, the [Petitioner]
"shaked it again and then squeezed it, and then more
white stuff came out.["] And he touched it and tasted it
and told her it was sweet. She tasted it, and the
[Petitioner] asked her if it was "sour or sweet, "
and she described the taste as "[s]our."
S.L. testified that, during the ride, the [Petitioner] also
asked her if she had to go "pee." She told him that
she did not, and he said he was going to "check
it." He stuck two fingers into her shorts and touched
the inside of her vagina. S.L. said it
S.L. said that the [Petitioner] told her he did not want her
to tell anyone about what had happened, but she could not
recall exactly what he said. She also recalled that, while
they were still in the car together, he told her he would get
into trouble if she told anyone.
Harrison v. State, No. M201500454CCAR3PC, 2016 WL
153028, at *l-2 (Tenn. Ct. Crim. App. Jan. 12, 2016) (quoting
State v. Harrison, No. M2011-01803-CCA-R3-CD, 2013
WL 5436711, at *l-2 (Tenn. Ct. Crim. App. Sept. 27, 2013).
ISSUES PRESENTED FOR REVIEW
asserts the following claims for relief:
There is insufficient evidence to support his conviction for
aggravated sexual battery in Count 2.
Trial counsel was ineffective for failing to object to the
trial court's instruction to the jury that it could
convict Petitioner of aggravated sexual battery as a
lesser-included offense of rape of a child as charged in
Appellate counsel was ineffective for failing to appeal on
the basis of the improper instruction to the jury to consider
aggravated sexual battery as a lesser-included offense of
rape of a child.
STANDARD OF REVIEW
AEDPA Review on the Merits
statutory authority of 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). Upon finding a constitutional
error on habeas corpus review, a federal court may only grant
relief if it finds that the error "had substantial and
injurious effect or influence in determining the jury's
verdict." Brecht v. Abrahamson, 507 U.S. 619,
637 (1993); Peterson v. Warren, 311 F.App'x 798,
803-04 (6th Cir. 2009).
was enacted "to reduce delays in the execution of state
and federal criminal sentences, particularly in capital cases
. . . and 'to further the principles of comity, finality,
and federalism.'" Woodford v. Garceau, 538
U.S. 202, 206 (2003) (quoting Williams v. Taylor,
529 U.S. 362, 436 (2000)). AEDPA's requirements
"create an independent, high standard to be met before a
federal court may issue a writ of habeas corpus to set aside
state-court rulings." Uttecht v. Brown, 551
U.S. 1, 10 (2007) (citations omitted). As the Supreme Court
has explained, AEDPA's requirements reflect "the
view that habeas corpus is a 'guard against extreme
malfunctions in the state criminal justice systems, ' not
a substitute for ordinary error correction through
appeal." Harrington v. Richter, 562 U.S. 86,
102-03 (2011) (quoting Jackson v. Virginia, 443 U.S.
307, 332 n.5 (1979)). Where state courts have ruled on a
claim, AEDPA imposes "a substantially higher
threshold" for obtaining relief than a de novo review of
whether the state court's determination was incorrect.
Schriro v. Landrigan, 550 U.S. 465, 473 (2007)
(citing Williams v. Taylor, 529 U.S. 362, 410
a federal court may not grant habeas relief on a claim
rejected on the merits in state court unless the state
decision was "contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States, "
or "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) and (d)(2). A
state court's legal decision is "contrary to"
clearly established federal law under § 2254(d)(1)
"if the state court arrives at a conclusion opposite to
that reached by [the Supreme] Court on a question of law or
if the state court decides a case differently than [the
Supreme] Court has on a set of materially indistinguishable
facts." Williams v. Taylor, 529 U.S. at 412-13.
An "unreasonable application" occurs when "the
state court identifies the correct legal principle from [the
Supreme] Court's decisions but unreasonably applies that
principle to the facts of the prisoner's case."
Id. at 413. A state court decision is not
unreasonable under this standard simply because the federal
court finds it erroneous or incorrect. Id. at 411.
Rather, the federal court must determine that the state
court's decision applies federal law in an objectively
unreasonable manner. Id. at 410-12.
a district court on habeas review may not find a state court
factual determination to be unreasonable under §
2254(d)(2) simply because it disagrees with the
determination; rather, the determination must be
'"objectively unreasonable' in light of the
evidence presented in the state court proceedings.'"
Young v. Hofbauer, 52 F.App'x 234, 236 (6th Cir.
2002). "A state court decision involves 'an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding' only if
it is shown that the state court's presumptively correct
factual findings are rebutted by 'clear and convincing
evidence' and do not have support in the record."
Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007)
(quoting § 2254(d)(2) and (e)(1)); but see McMullan
v. Booker, 761 F.3d 662, 670 and n.3 (6th Cir. 2014)
(observing that the Supreme Court has not clarified the
relationship between (d)(2) and (e)(1) and the panel did not
read Matthews to take a clear position on a circuit
split about whether clear and convincing rebutting evidence
is required for a petitioner to survive (d)(2)). Moreover,
under § 2254(d)(2), "it is not enough for the
petitioner to show some unreasonable determination of fact;
rather, the petitioner must show that the resulting state
court decision was 'based on' that unreasonable
determination." Rice v. White, 660 F.3d 242,
250 (6th Cir. 2011). Thus the standard set forth in 28 U.S.C.
§ 2254(d) for granting relief on a claim rejected on the
merits by a state court "is a 'difficult to
meet' and 'highly deferential standard for evaluating
state-court rulings, which demands that state-court decisions
be given the benefit of the doubt.'" Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (quoting
Harrington, 562 U.S. at 102, and Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). The
petitioner carries the burden of proof. Pinholster,
563 U.S. at 181.
Exhaustion and Procedural Default
U.S.C. §§ 2254(b) and (c) provide that a federal
court may not grant a writ of habeas corpus on behalf of a
state prisoner unless, with certain exceptions, the prisoner
has presented the same claim to the state courts.
Pinholster, 563 U.S. at 182. This rule has been
interpreted by the Supreme Court as one of total exhaustion.
Rose v. Lundy,455 U.S. 509 (1982). Thus, each and
every claim set forth in a federal habeas corpus petition
must have been presented to the state appellate court.
Picard v. Connor,404 U.S. 270 (1971); see also
Pillette v. Foltz, 824 F.2d 494, 496 (6th Cir. 1987)
(exhaustion "generally entails fairly presenting the
legal and factual substance of every claim to all levels of
state court review"). Moreover, the substance of the
claim must have been presented to the state courts as a
federal constitutional claim, Gray v. Netherland,518 U.S. 152, 162-63 (1996); Koontz v. Glossa, 731
F.2d 365, 369 (6th Cir. 1984), and under the same legal
theory in which it is later presented in ...