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Scribner v. Donahue

United States District Court, M.D. Tennessee, Nashville Division

May 18, 2017

MICHAEL DONAHUE, Warden, Respondent.



         The petitioner, Robert Dee Scribner, II, a state inmate, filed this pro se action under 28 U.S.C. § 2254, seeking the writ of habeas corpus to set aside his state conviction for raping a child under the age of thirteen. (Docket Entry No. 1). The court appointed the Federal Public Defender to represent the petitioner and permitted the filing of an amended petition. (Docket Entry Nos. 28, 47). The court later granted appointed counsel the opportunity to obtain discovery. (Docket Entry No. 59). The petitioner then filed a Second Amended Petition (Docket Entry No. 79), in which the petitioner asserts the following claims: (1) the evidence at his trial was insufficient to support a conviction; (2) trial counsel was ineffective for failing to present any evidence regarding the petitioner's subjective awareness of the child's age, including failing to object to the State's motion in limine that precluded counsel from presenting or eliciting testimony about the petitioner's lack of knowledge of the child's age; (3) state post-conviction counsel was ineffective for failing to assert that trial counsel was ineffective for failing to present any evidence regarding the petitioner's subjective awareness of the child's age; and (4) the State withheld material, exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963). Id. at 14, 15, 18. The petitioner also asserts that the Second Amended Petition incorporates all other claims raised in the petitioner's pro se petition by reference and supplements, but does not supersede, the initial petition. Id. at 23.[1][2]

         Before the court is the respondent's Motion to Dismiss (Docket Entry No. 84) and proposed findings of fact and conclusions of law (Docket Entry No. 104). The respondent contends that the petitioner's claims are time-barred and that he has failed to show good cause for equitable tolling or that he is actually innocent. (Docket Entry No. 85, at 1). As to the Brady claim, the respondent also contends that the petitioner's Brady claim fails because the petitioner cannot show that the evidence was suppressed, exculpatory or impeaching, or that he suffered prejudice. (Docket Entry No. 104, at 1, 21). In his response (Docket Entry No. 88) and proposed findings of fact and conclusions of law (Docket Entry No. 105), the petitioner contends: (1) that the respondent waived the statute of limitations defense for his non-Brady claims, and the court should consider this claim in the interests of justice; (2) that the evidence was insufficient for his conviction for the rape of a child; (3) that trial counsel rendered ineffective assistance of counsel for failing to object to the State's motion in limine precluding him from presenting or eliciting testimony about the petitioner's lack of knowledge as to the child's age and that post-conviction counsel was ineffective for failing to raise this issue before the state courts; and (4) that the petitioner has established the elements of a Brady violation. (Docket Entry No. 105, at 26, 30, 13-15, 19-23).


         On August 29, 2007, a Davidson County Criminal Court jury convicted the petitioner of rape of a child, for which the petitioner was sentenced to sixteen (16) years of imprisonment to be served at 100 percent. (Docket Entry No. 31-1 at 65-66, 72).[3] The Tennessee Court of Criminal Appeals affirmed the petitioner's conviction and sentence. State v. Turner, No. M200800253CCAR3CD, 2009 WL 648963, at *1 (Tenn. Crim. App. Mar. 12, 2009). On August 17, 2009, the Tennessee Supreme Court denied the petitioner's application for permission to appeal. Scribner v. State, No. M2011-00229-CCA-R3-PC, LEXIS 485, at *2 (Tenn. Crim. App. June 19, 2012).

         On January 11, 2010, the petitioner filed a pro se post-conviction petition in the Criminal Court for Davidson County, followed by appointment of post-conviction counsel and the filing of an amended petition on June 16, 2010. Id. at *4. The state trial court conducted an evidentiary hearing and, on December 2, 2010, it denied the petitioner's petition for post-conviction relief. Id. at *4-6. On June 19, 2012, the Tennessee Court of Criminal Appeals affirmed the trial court's denial of post-conviction relief. Id. at *1. On October 17, 2012, the Tennessee Supreme Court denied the petitioner's application for permission to appeal. Id.

         On October 16, 2013, the petitioner filed his pro se federal habeas petition. (Docket Entry No. 1, at 47). On July 28, 2014, the petitioner's court appointed counsel filed an Amended Petition (Docket Entry No. 47). On January 16, 2015, the court granted appointed counsel permission to seek discovery from the Metropolitan Nashville Police Department (“MNPD”) and the Tennessee Department of Children's Services (“DCS”). (Docket Entry No. 59). The respondent produced requested documents to the petitioner on or around April 15, 2015. (Docket Entry No. 94, at ¶ 5). On July 24, 2015, the court granted the petitioner's motion to file a Second Amended Petition, which was accompanied by trial counsel's sealed declaration and six attachments, five of which the petitioner alleges were withheld in violation of Brady. (Docket Entry No. 79). On August 28, 2015, the respondent filed a Motion to Dismiss (Docket Entry No. 84) and, after being granted an extension of time to respond, on September 18, 2015, the petitioner filed his response. (Docket Entry Nos. 87 and 88).

         On January 15, 2016, the court ordered an evidentiary hearing on the petitioner's “Brady claim that may toll the applicable statute of limitations.” (Docket Entry No. 89). On March 15, 2016, the court conducted the evidentiary hearing. (Docket Entry No. 96). The parties filed their proposed findings of fact and conclusions of law on July 11, 2016. (Docket Entry Nos. 103-105). Due to the retirement of Judge Haynes on January 16, 2017, and pursuant to Administrative Order No. 138, this action was transferred to the undersigned. (Docket Entry No. 106).


         On the petitioner's direct appeal, the Tennessee Court of Criminal Appeals found the following facts[4]:

The defendants, Eric D. Turner and Robert Dee Scribner, II, were indicted by the Davidson County Grand Jury in a three-count indictment for rape of a child, a Class A felony, with Scribner charged with two counts and Turner charged with one count.
. . . .
This case arises out of the defendants' January 24, 2006, sexual encounter with the twelve year-old victim, A. D. According to the State's proof at trial, the victim became acquainted with twenty-three-year-old Turner and his twenty-two-year-old cousin, Scribner, through an adult chat line. On January 24, 2006, by prearrangement with the victim, the men picked up the victim from the street near her home and took her to Turner's house. Both men engaged in sexual activity with the victim at Turner's house and then took her back to her own home. Confronted by her mother that evening, the victim initially admitted to penile-vaginal intercourse with Scribner. A criminal investigation ensued, and she eventually admitted that she had engaged in sexual intercourse with both defendants during the January 24, 2006, episode at Turner's home.
At the defendants' August 27-28, 2007, joint trial, Metro Police Sex Crimes Detective Heather Baltz testified that she went to the victim's home on January 24, 2006, in response to a patrol officer's report of a child that might have been involved in a criminal sexual situation. After speaking with the victim and her mother, she accompanied the victim to the hospital, where a physical examination was performed and evidence collected for a rape kit. Detective Baltz stated that she took custody of the rape kit evidence and followed the standard practice of booking it into the Metro Police Property Room, where it was assigned a case number that was on all the paperwork connected with the evidence. She then transported the evidence to the Tennessee Bureau of Investigation (“TBI”) laboratory for analysis, where the TBI assigned its own internal reference numbers to it.
Detective Baltz testified that the victim provided her with the nicknames, “Kelondo” and “Little Daddy, ” later identified as Turner and Scribner, respectively. The victim initially mentioned only that she had engaged in penile-vaginal intercourse with Scribner but, during the course of her subsequent interviews, which occurred on February 10, February 14, and April 13, stated that she had sexual intercourse with both men. Detective Baltz testified that she interviewed each defendant, using a casual, non-confrontational approach designed to get them to open up about the incident. She laid out the victim's allegations to Turner, “present[ing] it as if they did have sex.” He did not deny it, and when she asked Turner if he had used a condom, he replied that he did not remember. She took the same approach with Scribner, who ultimately acknowledged that he had oral sex with the victim but continued to deny that he had engaged in vaginal sex with her. Detective Baltz stated that she collected cheek swabs from each defendant, which she submitted for DNA analysis. The tape recording of both interviews was played aloud for the jury and admitted into evidence.
On cross-examination, Detective Baltz acknowledged that each man expressed surprise, with Scribner appearing “extremely surprised, ” when she revealed the victim's age. She further acknowledged that the victim initially told her that she first met Turner at a convenience store, called Scribner to come pick her up, and had vaginal intercourse with Scribner. She confirmed that the victim did not tell her that she had sexual intercourse with Turner until the February 10 interview and did not admit to having met him on a chat line, rather than in a store, until the April 13 interview. She said that the victim explained that she knew she should not have been on the adult chat line and was afraid that she would get in trouble for having used it.
Detective Baltz testified that she did not ask the victim on January 24 if she had sexual relations with Turner but began to suspect as the night wore on that she had intercourse with both defendants. She said she interpreted Turner's statements that he was not going to lie about it and that he “got with” the victim as an admission that he had engaged in some type of sexual activity with her. She stated that when she confronted Scribner with the victim's allegation that they had sex three times, he denied vaginal sex but “seemed very comfortable ... admitting oral sex” until she explained to him that oral sex was a crime.
The victim testified that her date of birth was March 18, 1993, and that she was currently fourteen years old. She said that she became acquainted with Turner in December 2005 or January 2006 after calling a chat line advertised on television and that she told him she was sixteen years old. She talked to him more than once on the telephone and then arranged for him to pick her up down the street from her home. When he arrived, Scribner was in the vehicle with him. They took her to Turner's house, where all three of them went into Turner's bedroom and she sat on the bed. Turner asked her if she wanted to have sex, and she said yes. She lay down and Turner had sex with her, putting his “private part” inside her. She then had sex with Scribner as well, performing oral sex on him and engaging in vaginal intercourse. She had sex “more than one time” with both Scribner and Turner that day. Turner played a pornographic movie on the television during part of the time she was in his bedroom. Afterwards, both men took her home.
On cross-examination, the victim testified that she had been talking with Turner on the chat line for about two weeks before the incident occurred. She had never spoken to Scribner before meeting him that day. She denied that she told the men that she was eighteen and employed. She said that both Scribner and Turner remained in the bedroom during the entire episode.
Sue Ross, a pediatric nurse practitioner with Our Kids Center in Nashville, testified that she examined the victim at General Hospital on January 24, 2006. She said she found nothing of note in her genital examination of the victim but explained that was not unusual due to the elasticity of the tissue in a child who has already gone through puberty. She collected oral, vaginal, and cervical swabs as part of the rape kit, and her records reflected that she placed the evidence in the hospital's lock box for later collection by the detective investigating the case. Ross identified the evidence she had collected by, among other things, the packaging in which she had wrapped it and the hospital seal she had placed across the envelopes.
TBI Special Agent Forensic Scientist Charles Hardy identified the rape kit evidence and the defendants' cheek swabs by, among other things, the Metro Police Department case number, as well as the TBI case number that was assigned to the evidence upon its receipt into the TBI Laboratory. He stated that the evidence receiving section of the laboratory would not accept evidence that was not sealed. The unsealed rape kit evidence was boxed and shipped to Bode Technology, a laboratory in Virginia, for analysis, while he processed the cheek swabs internally at the TBI Laboratory in Nashville. A single male profile was obtained from sperm recovered from the victim's vaginal and cervical swabs, which, upon comparison, was a “full profile match” to Scribner's DNA. According to Agent Hardy, the probability of an unrelated individual from the African-American, Caucasian, Southeastern, Hispanic, or Southwestern Hispanic population having the same DNA profile exceeded the current world population.
Shana Mills, a forensic scientist with Bode Technology, identified the evidence analyzed in her laboratory and testified that it was sealed when it arrived. She said that her testing revealed the presumptive presence of sperm on the vaginal and cervical swabs. She found no sperm on the oral swab.
Sarah Shields, a DNA analyst at Bode Technology, testified that she isolated the DNA profiles from the victim's oral, vaginal, and cervical swabs, finding the presence of the same male DNA on the cervical and vaginal swabs.
The defendants elected not to testify and rested their cases without presenting any proof.

State v. Turner, No. M200800253CCAR3CD, 2009 WL 648963, at *1-3 (Tenn. Crim. App. Mar. 12, 2009) (footnote omitted).


         A. EXHAUSTION

         Title 28 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 sought to be redressed in a federal habeas court to the state courts. Cullen v. Pinholster, 563 U.S. 170, 182 (2011). The petitioner must “fairly present”[5] each claim at 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 to seek review in that court in order to “be deemed to have exhausted all available state remedies.” Adams v. Holland, 330 F.3d 398, 402 (6th Cir.2003), cert. denied, 541 U.S. 956 (2004); see also Smith v. Morgan, 371 F.App'x 575, 579 (6th Cir. 2010) (“Adams not only requires the federal courts to ensure that the state courts have the first opportunity to review and evaluate legal claims ... but also mandates that the federal courts respect the duly-promulgated rule of the Tennessee Supreme Court that recognizes the law and policy-making function of that court and the court's desire not to be entangled in the business of simple error correction”).

         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 the 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 as a federal constitutional claim. Gray v. Netherland, 518 U.S. 152, 162-63 (1996). Fair presentation requires that the state courts be given the opportunity to see both the factual and legal basis for each claim. Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009). For the claim to be exhausted, it must be presented to the state courts as a federal constitutional issue, not merely as an issue arising under state law. Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984).

         Specifically, in determining whether a petitioner “fairly presented” a federal constitutional claim to the state courts, federal courts should consider whether the petitioner: (1) phrased the federal claim in terms of the pertinent constitutional law or in terms sufficiently particular to allege a denial of the specific constitutional right in question; (2) relied upon federal cases employing the constitutional analysis in question; (3) relied upon state cases employing the federal constitutional analysis in question; or (4) alleged “facts well within the mainstream of [the pertinent] constitutional law.” Hicks v. Straub, 377 F.3d 538, 553 (6th Cir. 2004) (quoting McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir.2000)). Moreover, the claim must be presented to the state courts under the same legal theory in which it is later presented in federal court. Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). It cannot rest on a legal theory that is separate and distinct from the one previously considered and rejected in state court. Id. This does not mean that the applicant must recite “chapter and verse” of constitutional law, but the applicant is required to make a specific showing of the alleged claim. Wagner, 581 F.3d at 414.


         The procedural default doctrine is ancillary to the exhaustion requirement. See Edwards v. Carpenter, 529 U.S. 446 (2000) (noting the interplay between the exhaustion rule and the procedural default doctrine). If the state court decides a claim on an independent and adequate 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. Wainwright v. Sykes, 433 U.S. 72, 81-82 (1977); see also 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”); Coleman v. Thompson, 501 U.S. 722 (1991) (same).[6] If a claim has never been presented to the state courts, but a state court remedy is no longer available (e.g., when an applicable statute of limitations bars a claim), then the claim is technically exhausted, but procedurally barred. Coleman, 501 U.S. at 731-32; see also Hicks v. Straub, 377 F.3d 538, 551 (6th Cir.2004) (the procedural default doctrine prevents circumvention of the exhaustion doctrine), cert. denied, 544 U.S. 928 (2005).

         If a claim is procedurally defaulted, “federal habeas review of the claim is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. The burden of showing cause and prejudice to excuse defaulted claims is on the habeas petitioner. Lucas v. O'Dea, 179 F.3d 412, 418 (6th Cir.1999) (citing Coleman, 501 U.S. at 754).

         A petitioner can establish cause in two ways. First, a petitioner may “show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986); see also Coleman, 501 U.S. at 753; Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003). Objective impediments include an unavailable claim or interference by officials that made compliance impracticable. Murray, 477 U.S. at 488. Second, constitutionally ineffective assistance of counsel may constitute cause under certain circumstances. Murray, 477 U.S. at 488-89; Broom v. Mitchell, 441 F.3d 392, 401 (6th Cir. 2006); Rust v. Zent, 17 F.3d 155, 161 (6th Cir. 1994). In Tennessee, the ineffective assistance of post-conviction counsel can, under limited circumstances, establish cause for the default of a claim of ineffective assistance of trial counsel. Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 1320 (2012); Sutton v. Carpenter, 745 F.3d 787 (6th Cir.2014).

         Because the cause and prejudice standard is not a perfect safeguard against fundamental miscarriages of justice, the United States Supreme Court has recognized a narrow exception to the cause requirement where a constitutional violation has “probably resulted” in the conviction of one who is “actually innocent” of the substantive offense. Dretke v. Haley, 541 U.S. 386, 392 (2004) (citing Murray, 477 U.S. at 495-96); accord Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006).



         The Antiterrorism and Effective Death Penalty Act (“ADEPA”) provides a one-year statute of limitations for § 2254 habeas corpus petitions that runs from the latest of four dates:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1)(A)-(D). The one-year period is tolled during the time in “which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending . . . .” 28 U.S.C. § 2244(d)(2).

         The one-year statute of limitations may be subject to equitable tolling, excusing the literal enforcement of the federal habeas statute of limitations if a petitioner shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks and citation omitted). A “petitioner bears the burden of demonstrating that he is entitled to equitable tolling.” Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004). The Supreme Court has also stated that a “credible showing of actual innocence” may allow a petitioner to pursue his constitutional claims on the merits notwithstanding the existence of a procedural bar to relief. McQuiggin v. Perkins, ___ U.S. ___, 133 S.Ct. 1924, 1931 (2013). “‘[A]ctual innocence' means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). A petitioner must show “‘it is more likely than not that no reasonable juror would have convicted [the petitioner] in the light of the new evidence.'” McQuiggin, 133 S.Ct. at 1935 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).

         The petitioner's state court conviction became final on November 15, 2009, ninety (90) days after August 17, 2009, when the Tennessee Supreme Court denied permission to appeal. Pinchon v. Myers, 615 F.3d 631, 640 (6th Cir. 2010). Thus, the petitioner's one-year limitations period under AEDPA began to run on November 15, 2009. The limitations period was tolled after fifty-seven (57) days, upon the filing of his post-conviction petition on January 11, 2010. The limitations period resumed on October 17, 2012, when the Tennessee Supreme Court denied permission to appeal. Lawrence v. Florida, 549 U.S. 327, 332 (2007) (“The application for state postconviction review is . . . not ‘pending' after the state court's postconviction review is complete, and § 2244(d)(2) does not toll the 1-year limitations period during the pendency of a petition for certiorari.”); Tyler v. Ray, 610 F. App'x 445, 452 (6th Cir.), cert. denied sub nom. Tyler v. Schofield, 136 S.Ct. 239 (2015) (under Tennessee law state post-conviction relief is no longer pending on the date of the Tennessee Supreme Court's decision, not the date of the mandate). Therefore, the petitioner's one-year limitations period expired on August 21, 2013. The petitioner filed his pro se petition in this action on October 16, 2013, approximately fifty-seven (57) days after the expiration of his limitations period.

         The petitioner agrees to this calculation of the statute of limitations. (Docket Entry No. 105, at 25) The petitioner does not argue that equitable tolling applies or that he is actually innocent. However, the petitioner argues that the statute of limitations is an affirmative defense that the respondent waived by stating in its answer that the petitioner's petition was timely filed. (Docket Entry No. 105, at 25). The petitioner argues that the interests of justice would be better served by addressing his claims. Id. at 26.

         In its answer, the respondent initially stated that “[t]his is his first petition for habeas corpus relief under 28 U.S.C. § 2254 and it is timely filed.” (Docket Entry No. 27, at 2). However, in its first Motion to Dismiss, the respondent asserted that the petition was time-barred by the one-year statute of limitations period under 28 U.S.C. § 2244(d), stating that “[t]he State inadvertently failed to assert this affirmative defense in its initial response to the petitioner's pro se petition.” (Docket Entry No. 55, at 1 n.1). The respondent argues that the petitioner's habeas claims should not be deemed timely simply because of counsel's inadvertent error, where the record does not suggest that the State “strategically” withheld the statute of limitations defense or chose to relinquish it. (Docket Entry No. 85, at 5).

         “‘The AEDPA statute of limitation promotes judicial efficiency and conservation of judicial resources, safeguards the accuracy of state court judgments by requiring resolution of constitutional questions while the record is fresh, and lends finality to state court judgments within a reasonable time.'” Day v. McDonough, 547 U.S. 198, 205-06 (2006) (quoting Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir. 2000)). The Supreme Court has held that “district courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition.” Id. at 209. To be sure, “before acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.” Id. at 210. A court must also “assure itself that the petitioner is not significantly prejudiced by the delayed focus on the limitation issue, and ‘determine whether the interests of justice would be better served' by addressing the merits or by dismissing the petition as time barred.” Id. Affirming the district court's dismissal, on its own initiative, of a state prisoner's petition for a writ of habeas corpus as untimely, the Supreme Court in Day noted that “nothing in the record suggests that the State ‘strategically' withheld the defense or chose to relinquish it, ” and that the record reflected that “there was merely an inadvertent error, a miscalculation that was plain under Circuit precedent.” Id. at 211.

         Here, the record reflects that the respondent's failure to raise the timeliness defense was the result of inadvertent error and that the interests of justice would be better served by dismissing the petitioner's insufficiency of the evidence and ineffective assistance of counsel claims, as well as the claims raised in his pro se petition, as time barred. Soule v. Palmer, No. 08-CV-13655, 2013 WL 450980, at *3 (E.D. Mich. Feb. 5, 2013) (“Mere inadvertence on the part of the respondent in failing to raise this defense at the first opportunity does not establish ‘bad faith' or undue prejudice to petitioner nor does it establish an intelligent or deliberate waiver of that defense.”) (citing Sudberry v. Warden, Southern Ohio Correctional Facility, 626 F.Supp.2d 767, 782 (S.D. Ohio 2009)).

         Accordingly, the court concludes that the petitioner's insufficiency of the evidence and ineffective assistance of counsel claims and the petitioner's claims in his pro se petition are time barred and will be dismissed.

         B. BRADY CLAIM

         The petitioner contends that the State withheld material, exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963). Specifically, the petitioner contends that documents from DCS and the MNPD were not disclosed to appointed counsel until after the commencement of this federal action and the expiration of the statute of limitations. The petitioner asserts that these documents from DCS and the MNPD reflect evidence of the sexual history of A.D., the child victim, and evidence that A.D. convincingly lied to adults. (Docket Entry No. 105, at 14, 20). The petitioner's argument is that “[t]he withheld evidence would have demonstrated to the jury that A.D. acted ‘older' than her 12 years and 10 months in two ways: she was considerably more sexually experienced than one would expect for her age, and she was a much more convincing liar than her ‘hesitant demeanor' on the stand suggested.” Id. at 23. The petitioner also argues that the withheld evidence would have been valuable in convincing the trial judge to issue a clearer jury instruction, which trial counsel requested. Id.

         The respondent contends that the petitioner cannot show that the allegedly suppressed information (1) was improperly withheld; (2) was exculpatory or impeaching; or (3) that the evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict when viewed with the entire record. (Docket Entry No. 104 at 1).

         1. Relevant Facts and Background

         Prior to trial, the petitioner was originally represented by Michael Colavecchio. (Docket Entry No. 96, Federal Evidentiary Hearing Transcript, at 6). During the discovery phase, Colavecchio submitted a discovery request to the State, requesting, among other things, that “[i]n accordance with Brady v. Maryland, 373 U.S. 83 (1963), all items of exculpatory nature, if any there be will be furnished to defense counsel if and when any such item or information becomes known to the State.” (Docket Entry No. 96, at 8; Docket Entry No. 88-1, at ¶ 7). The State responded, “None known at this time.” (Docket Entry No. 88-1, at ¶ 7). A conflict later arose between the petitioner and Colavecchio, and the trial court appointed David M. Hopkins to represent the petitioner. (Docket Entry No. 96, at 6). At the federal evidentiary hearing, Hopkins testified that the State did not provide any additional Brady evidence in discovery. Id. at 9.

         In pretrial motions, the State filed a motion in limine requesting that the court “instruct defense counsel not to ask any questions or make statements before the jury at any stage including voir dire and opening statement relating to any prior sexual activity of the victim” under Rule 412 of the Tennessee Rules of Evidence. (Docket Entry No. 31-1, motion in limine No. 2, at 17). As to the trial court's granting of this motion, the trial record reflects the following:

THE COURT: . . . . That motion will have to be granted. I don't think you can get into that.
MR. HOPKINS: Could I be heard on that just briefly. Should - should the witness, [A.D.] testify to the contrary, of course, she would be allowed to be impeached if she had actually had prior activity.
. . . .
MR. HOPKINS: If she testifies, that, no, I've never had any prior sexual activity, but, when there's proof that she has.
THE COURT: In other words, if she opens ...

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