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Pugh v. McAllister

United States District Court, E.D. Tennessee, Greeneville

September 20, 2017

STEVE PUGH, Petitioner,



         In 2011, Steve Pugh (“Petitioner”) entered a best interest guilty plea[1] on two counts of attempted first degree murder and received an effective seventeen-year sentence of incarceration. Petitioner now brings this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 [Doc. 2] challenging the legality of his confinement under that state court judgment. Warden Gerald McAllister (“Respondent”) filed a response to the petition, arguing that relief is unwarranted with respect to Petitioner's claims based on procedural default and, in support of his argument, he has filed copies of the state court record [Doc. 11 and 12]. Petitioner filed a reply to Respondent's response stating that any procedural default should be excused [Doc. 15].

         For the reasons set forth below, however, the Court determines that no evidentiary hearing is warranted in this case, Petitioner's § 2254 petition [Doc. 2] will be DENIED, and this action will be DISMISSED.


         Petitioner is currently serving two concurrent seventeen-year sentences after he entered a best interest guilty plea to two counts of attempted first degree murder on March 11, 2011. Pugh v. State, No. E2012-02649-CCA-R3PC, 2013 WL 4806964, at *1 (Tenn. Crim. App. Sept. 9, 2013), app. denied (Tenn. Jan. 14, 2014). The convictions were based upon the act of shooting his pregnant girlfriend in the stomach. Id. Petitioner did not file a direct appeal of the judgment [Doc. 2 at 2]. However, Petitioner did file a timely pro se petition for post-conviction relief. Pugh, 2013 WL 4806964, at *1. Following the appointment of counsel, an amended petition was filed. Id. A hearing on the matter was held and the post-conviction court denied relief on November 29, 2012. Id. On September 9, 2013, the Tennessee Court of Criminal Appeals (“TCCA”) affirmed the trial court's judgment. Id. The Tennessee Supreme Court denied permission to appeal on January 14, 2014. Id. There followed this timely § 2254 habeas corpus application alleging he was denied his right to effective assistance of counsel.


         In his petition, Petitioner asserts that he received ineffective assistance of counsel due to trial counsel's failure to interview Tonya Mallicote, an alleged alibi witness, and failure to interview the victim, Mary Smith, to ascertain possible impeachment [Doc. 2 at 5, 10]. Respondent argues, in her answer, that Petitioner's claims are barred by Petitioner's state procedural defaults [Doc. 11]. Respondent asserts that Petitioner's claims of ineffective assistance, which he raises on federal habeas review, have not been fairly or adequately presented in the state courts in satisfaction of § 2254(b)'s exhaustion requirement” [Id.]. Furthermore, Respondent asserts that “those claims are now barred from presentation to the state courts by the statute of limitations under Tenn. Code. Ann. § 40-30-102(a) and the ‘one petition' limitation of § 40-30-102(c)” [Id.].

         A federal district court will not entertain a petition for writ of habeas corpus unless the Petitioner has first exhausted all available state court remedies for each claim in his petition. 28 U.S.C. § 2254(b)(1). While exhaustion is not a jurisdictional requirement, it is a strictly enforced doctrine that promotes comity between the states and federal government by giving the state an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Consequently, as a condition precedent to seeking federal habeas corpus relief, a petitioner is required to fairly present his claims to every available level of the state court system. Rose v. Lundy, 455 U.S. 509, 518-20 (1982); Lyons v. Stovall, 188 F.3d 327, 331 (6th Cir. 1999). The petitioner must offer the state courts both the factual and legal bases for his claims. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). In other words, the Petitioner must present “the same claim under the same theory” to the state courts. Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987). It is not enough that all the facts necessary to support a federal claim were before the court or that the Petitioner made a somewhat similar state law claim. Anderson v. Harless, 459 U.S. 4, 6 (1982). Once Petitioner's federal claims have been raised in the highest state court available, the exhaustion requirement is satisfied, even if that court refused to consider the claims. Manning v. Alexander, 912 F.2d 878, 883 (6th Cir. 1990).[2]

         Here, Petitioner claims that his trial counsel was ineffective for failing to interview potential witnesses [Doc. 2]. These claims of ineffective assistance of counsel were addressed by the post-conviction trial court, but never raised in the state appellate court for review, and the TCCA did not consider these issues sua sponte. Therefore, Petitioner did not fairly present this claim to every available level of the state court.

         At this late date, the Petitioner is no longer able to raise this issue as a federal claim in state court. See Tenn. Code Ann. § 40-30-102(a) (post-conviction petition must be filed “within one year of the date of the final action of the highest state appellate court to which an appeal is taken or, if no appeal is taken, within one year of the date on which the judgment became final”) and (c) (“This part contemplates the filing of only one petition for post-conviction relief”). Therefore, by way of procedural default, the Petitioner has technically met the exhaustion requirement with respect to this claim because there are no state court remedies currently available to him for it. Shipp v. Holloway, No. 1:15-CV-0012, 2017 WL 2376774, at *3 (M.D. Tenn. June 1, 2017) (citing Castille v. Peoples, 489 U.S. 346, 351 (1989) (the requirement of exhaustion is satisfied if it is clear that petitioner's claims are now procedurally barred under state law)).

         The exhaustion of a claim via procedural default does not, however, automatically entitle a habeas petitioner to federal review of that claim. To prevent a federal habeas petitioner from circumventing the exhaustion requirement in such a manner, the Supreme Court has held that a Petitioner who fails to comply with state rules of procedure governing the timely presentation of federal constitutional issues forfeits the right to federal review of those issues, absent cause for the noncompliance and some showing of actual prejudice resulting from the alleged constitutional violations. Gray v. Netherland, 518 U.S. 152, 162 (1996); Shipp, 2017 WL 2376774, at *3.

         In his reply, Petitioner cites to Martinez v. Ryan, 566 U.S. 1, 9 (2012) arguing that his claims should be excused from procedural default because his post-conviction counsel was ineffective for failing to raise these claims. Martinez effected a change in decisional law in that it created a “narrow exception” to the general rule of Coleman v. Thompson, 501 U.S. 722 (1991). The general rule from Coleman states that a habeas petitioner cannot use ineffective assistance of collateral review counsel as cause to excuse a procedural default. Id. at 756-57. The Martinez exception, however, provides that where a state's procedural law requires claims of ineffective assistance of counsel to be raised in an initial-review collateral proceeding, a procedural default will not bar a habeas court from hearing a substantial claim on ineffective assistance of counsel, if in the initial-review collateral proceeding, counsel in that proceeding was ineffective. Martinez, 132 S.Ct. at 1320. A year later, the Supreme Court expanded the Martinez exception to cases where a “state['s] procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of counsel on direct appeal . . .” Trevino v. Thaler, 133 S.Ct. 1911 at 1921 (2013). The Sixth Circuit subsequently ruled this exception applicable to Tennessee. See Sutton v. Carpenter, 745 F.3d 787, 795-96 (6th Cir. 2014)).

         Under Martinez a petitioner may establish cause to excuse a procedural default of an ineffective assistance of trial counsel claim by showing that he received ineffective assistance by post-conviction counsel. See Martinez, 132 S.Ct. at 1320. This holding does not dispense with the “actual prejudice” requirement of Coleman; as such, a petitioner must show that his post-conviction counsel was ineffective under Strickland. See Strickland v. Washington, 466 U.S. 668, 694 (1984). That is, “the petitioner must show both that his post-conviction counsel's performance was constitutionally deficient and that the petitioner was prejudiced by the deficiency.” Thorne v. Hollway, No. 3:14-CV-0695, 2014 WL 4411680, at *22 (M.D. Tenn. Sept. 8, 2014) (quoting Clabourne v. Ryan, 745 F.3d 362, 376 (9th Cir. 2014).

         In addition, relief under Martinez requires a showing of a substantial underlying claim of ineffective assistance of trial counsel. See Trevino, 133 S.Ct. at 1918; Martinez, 132 S.Ct. at 1318-19. This showing, as with the showing for post-conviction counsel, must meet the requirements of Strickland. See id. Under Strickland, a petitioner can prove prejudice by showing “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. The “actual prejudice” requirement of Coleman and the prejudice requirement of Strickland overlap such that “in many habeas cases seeking to overcome procedural default under Martinez, it will be more efficient for the reviewing court to consider in the ...

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