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Shaw v. Perry

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

February 15, 2017

JOSEPH SHAW, JR. Petitioner,
v.
GRADY PERRY, Respondent.

          ORDER DIRECTING CLERK TO SUBSTITUTE RESPONDENT, DENYING § 2254 PETITION, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          J. DANIEL BREEN CHIEF UNITED STATES DISTRICT JUDGE.

         Joseph 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.[1]

         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”).

         1. Merits Review

         Under 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, 41 (1984)).

         The 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, § 2254(d)(2).

Harrington v. Richter, 562 U.S. 86, 100 (2011).

         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, 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.

         There 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).

         2. Exhaustion and Procedural Default

         Before 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 (1999).

         In 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.

         The 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.

         It is 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 Cir. 2014).

         BACKGROUND

         The 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).[2] The procedural facts are drawn from the state court record filed by Respondent. (See ECF No. 19.)

         1. Shaw's Trial

         Shaw 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. at *1-2.

         At 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.

         When 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.

         The 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 prosecutor.” Id.

         A 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.

         The 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.

         2. Post-Trial Proceedings

         Shaw 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.)

         3. Shaw's § 2254 Petition

         Shaw raises five grounds for habeas relief, one of which consists of three sub-claims.

         The claims are:

• 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 ...


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