United States District Court, W.D. Tennessee, Eastern Division
JOSEPH SHAW, JR. Petitioner,
GRADY PERRY, Respondent.
ORDER DIRECTING CLERK TO SUBSTITUTE RESPONDENT,
DENYING § 2254 PETITION, DENYING A CERTIFICATE OF
APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA
DANIEL BREEN CHIEF UNITED STATES DISTRICT JUDGE.
Shaw, Jr., was convicted of sexual battery and rape following
a jury trial in the Madison County Circuit Court in Jackson,
Tennessee. After unsuccessfully appealing his conviction and
sentence, he sought state post-conviction relief, which was
denied. Proceeding pro se, Shaw now seeks federal
habeas corpus relief challenging his conviction and sentence
pursuant to 28 U.S.C. § 2254. For the reasons discussed
below, the § 2254 petition is DENIED.
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”).
the AEDPA, habeas relief is available only if the prisoner is
“in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. §
2254(a). A § 2254 claim challenging the petitioner's
custody or sentence on state-law grounds thus fails to state
a federal habeas claim. Moreland v. Bradshaw, 699
F.3d 908, 926 (6th Cir. 2012) (writ of habeas corpus may not
issue “on the basis of a perceived error of state
law”) (citing Pulley v. Harris, 465 U.S. 37,
availability of federal habeas relief is further restricted
where the petitioner's claim was “adjudicated on
the merits” in the state courts. 28 U.S.C. §
2254(d). In that circumstance, federal habeas relief
“may not be granted” unless:
the earlier state court's decision “was contrary
to” federal law then clearly established in the
holdings of [the Supreme] Court, [28 U.S.C.] §
2254(d)(1); Williams v. Taylor, 529 U.S. 362, 412
(2000); or . . . “involved an unreasonable application
of” such law, § 2254(d)(1); or . . . “was
based on an unreasonable determination of the facts” in
light of the record before the state court, §
Harrington v. Richter, 562 U.S. 86, 100
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, 529 U.S. at 412-13. An
“unreasonable application” of federal law occurs
when the 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 413.
is little case law addressing the “unreasonable
determination of the facts” standard of §
2254(d)(2). The Supreme Court has explained, however, that a
state court's factual determination is not
“unreasonable” merely because the federal habeas
court would have reached a different conclusion. See Wood
v. Allen, 558 U.S. 290, 301 (2010). Although the Sixth
Circuit has described the standard as “demanding but
not insatiable, ” it construes the standard in tandem
with § 2254(e)(1) to require a presumption that the
state court's factual determination is correct in the
absence of clear and convincing evidence to the contrary.
Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir. 2010)
(quotation marks and citation omitted).
Exhaustion and Procedural Default
a federal court will review the merits of a claim brought
under § 2254, the petitioner must have “exhausted
the remedies available in the courts of the State.” 28
U.S.C. § 2254(b)(1)(A). The exhaustion provision is
“designed to give the state courts a full and fair
opportunity to resolve federal constitutional claims before
those claims are presented to the federal courts.”
O'Sullivan v. Boerckel, 526 U.S. 838, 845
light of this purpose, the Supreme Court has interpreted the
exhaustion provision as requiring not mere
“technical” exhaustion, Coleman v.
Thompson, 501 U.S. 722, 732 (1991), but
“proper” exhaustion. Boerckel, 526
U.S. at 848. A claim is technically exhausted when state
remedies are no longer available to the petitioner.
Coleman, 501 U.S. at 732 (citing 28 U.S.C. §
2254(b)). Technical exhaustion therefore encompasses not only
situations where the petitioner fully presented his claim to
the state courts, but also instances where the prisoner did
not present his claim to the state courts at all or failed to
present it to the highest available court, and the time for
doing so has expired. Boerckel, 526 U.S. at 848;
Wood v. Ngo, 548 U.S. 81, 92-93 (2006). If federal
habeas courts were generally allowed to review such claims,
the exhaustion provision's purpose of giving the state
courts the first opportunity to resolve federal
constitutional issues would be “utterly
defeated.” Edwards v. Carpenter, 529 U.S. 446,
453 (2000). “To avoid this result, and thus protect the
integrity of the federal exhaustion rule, ” a claim
must be “properly” exhausted, meaning it must be
“fairly presented” through “one complete
round of the State's established appellate review
process.” Boerckel, 526 U.S. at 845, 848.
exhaustion requirement works in tandem with the
procedural-default rule, which generally bars federal habeas
review of claims that were procedurally defaulted in the
state courts. Id. at 848. Broadly speaking,
procedural default happens in two ways. A petitioner
procedurally defaults his claim where he fails to properly
exhaust available remedies (that is, fails to “fairly
present” the claim through “one complete
round” of the state's appellate review process),
and he can no longer exhaust because a state procedural rule
or set of rules have closed-off any “remaining state
court avenue” for review of the claim on the merits.
Harris v. Booker, 251 F.App'x 319, 322 (6th Cir.
2007). See also Boerckel, 526 U.S. at 846, 848.
Procedural default also occurs where the state court
“actually . . . relie[s] on [a state] procedural bar as
an independent basis for its disposition of the case.”
Caldwell v. Mississippi, 472 U.S. 320, 327 (1985).
To cause a procedural default, the state court's ruling
must “rest on a state law ground that is independent
of the federal question and adequate to support the
judgment.” Coleman, 501 U.S. at 729.
only when the petitioner shows “cause for the default
and actual prejudice as a result of the alleged violation of
federal law, ” or demonstrates that “the
court's failure to consider the claim will result in a
fundamental miscarriage of justice, ” that a federal
court will review the merits of a claim that was procedurally
defaulted. Coleman, 501 U.S. at 750 (citing
Murray v. Carrier, 477 U.S. 478, 496 (1986)). The
ineffectiveness of post-conviction counsel may be cause to
excuse the default of an
ineffective-assistance-of-trial-counsel claim. Trevino v.
Thaler, 133 S.Ct. 1911, 1918 (2013); Martinez v.
Ryan, 132 S.Ct. 1309 (2012); Hodges v. Colson,
727 F.3d 517, 531 (6th Cir. 2013). A fundamental miscarriage
of justice is met “where a prisoner asserts a claim of
actual innocence based upon new reliable evidence.”
Bechtol v. Prelesnik, 568 F. App'x 441, 448 (6th
following background summary is drawn from the TCCA's
recitation of the evidence at Shaw's trial. See State
v. Shaw, No. W2009-02326-CCA-R3-CD, 2010 WL 338499, at
*1 (Tenn. Crim. App. Aug. 27, 2010). The procedural facts are
drawn from the state court record filed by Respondent.
(See ECF No. 19.)
was charged with sexual battery and rape of a
thirteen-year-old girl. The girl testified at trial that at
the time of the incident Shaw was her mother's boyfriend.
On August 30, 2008, at her mother's request, Shaw brought
food to the daughter at her home. The girl, who was dressed
in her pajamas and wrapped in a blanket, ate her meal while
on the sofa watching television. Shaw ate his meal at the
table. When he got up to leave, he “knelt down on the
floor beside” the girl “and started
talking.” Shaw, 2010 WL 338499, at *1. After
the girl told him to leave, he attacked her, “grabbing
her breasts and buttocks and penetrating her labia with his
fingers.” Id. The girl screamed and kicked,
and Shaw put a shirt over her mouth. Shaw ran out the
apartment when the girl received a phone call from her
cousin. After speaking with her cousin, the girl called her
friend and told her what had happened. The friend's
mother then contacted the victim's mother. Id.
trial, the girl “identified on an anatomical drawing
where the defendant had touched her, circling the buttocks,
breast, and pubic areas of the drawing.” Id.
at *2. She testified that Shaw's “fingers touched
the inside of [her] lips just a little bit.”
Id. (quotation marks omitted, alteration in
original). The girl “also demonstrated on an
anatomically correct doll where the defendant had penetrated
her with his fingers.” Id.
cross-examined, the girl “acknowledged that she did not
call 911, or her mother, that she told her cousin that
everything was okay, and that none of her neighbors came to
check on her.” Id. She also “agreed that
she testified at the preliminary hearing that the defendant
had not penetrated her but then changed her answer after
meeting with someone from the prosecutor's office.”
Id. She also testified that prior to the
defendant's attack, the defendant had insulted her by
saying that the singer Chris Brown, whom she liked, would
never date a fat girl like her. Id.
girl's mother testified that after she was informed of
the incident, she “head[ed] home, calling the police,
an ambulance, and the defendant en route.” Id.
at *3. When she arrived at her apartment, Shaw was outside.
Shaw “initially” told the mother “that he
had not touched the victim but later admitted that he had
touched the victim's breasts and buttocks.”
Id. When the mother asked Shaw why, “he never
gave her an answer.” Id. On cross-examination,
the mother acknowledged that in her statement to police she
said that Shaw had told her that the touching “occurred
while [Shaw and the girl] were playing.” Id.
The mother also testified that the girl had said at the
preliminary hearing that Shaw had not penetrated her
“because she thought, at the time, that penetration
required insertion into the actual vagina.”
Id. She said “that she and the victim did not
learn otherwise until they were instructed by the
Jackson Police investigator testified that the girl's
“account of the crime in the statement she took from
her was consistent with the account she provided at
trial.” Id. When cross-examined, the
investigator “acknowledged that the victim mentioned
nothing in her statement about the Chris Brown exchange or
the defendant's having touched her thigh.”
Id. Shaw testified that the girl had attacked him
because of his Chris Brown comment, that any touching of the
girl was unintentional, and that he did not penetrate her
vagina. Id. at *3-4. When called to the stand in
rebuttal, the girl denied that she had attacked Shaw.
Id. at *4.
jury convicted Shaw of sexual battery and rape. The court
merged the sexual battery conviction into the rape
conviction. After applying the “private trust”
enhancement factor under state law, the trial court sentenced
Shaw to eleven years' imprisonment. Id.
appealed his conviction and sentence to the TCCA. See
Id. at *1. The TCCA denied relief, id, and the
Tennessee Supreme Court denied permission to appeal (ECF No.
19-12). Shaw thereafter filed a post-conviction petition
seeking relief from his conviction and sentence on numerous
grounds. (ECF No. 19-13 at 5-7.) After an evidentiary
hearing, the postconviction court denied relief. (ECF No.
19-13 at 20-26.) Shaw appealed and the TCCA affirmed the
lower court's decision. Shaw v. State, No.
W2012-00630-CCA-R3-PC, 2013 WL 1385006, at *1 (Tenn. Crim.
App. Apr. 4, 2013). The Tennessee Supreme Court denied
permission to appeal. (ECF No. 19-20.)
Shaw's § 2254 Petition
raises five grounds for habeas relief, one of which consists
of three sub-claims.
• Claim 1: Ineffective Assistance of Counsel Based on
Trial Counsel's Failure to Strike Juror Brooks
• Claim 2: Ineffective Assistance of Counsel Based on
Trial Counsel's Failure to Call Character Witnesses
•Claim 3: Denial of Fair Trial and Impartial Jury
• Claim 4(A): Insufficiency of the Evidence to Convict
• Claim 4(B): Admission of a Prior Consistent Statement
Without a Limiting Instruction
• Claim 4(C): Excessive Sentencing
• Claim 5: Ineffective Assistance of Counsel Based on
Trial Counsel's Failure to Warn Petitioner About the
Lifetime Community Supervision Requirement
(ECF No. 1 at 3-4.) Respondent argues that several of the
claims are barred under the procedural-default doctrine and
the remaining claims are ...