United States District Court, E.D. Tennessee, Greeneville
GREER, UNITED STATES DISTRICT JUDGE.
2011, Steve Pugh (“Petitioner”) entered a best
interest guilty plea 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].
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
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.
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 §
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.
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.
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)).
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.
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)).
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).
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 ...