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Seymore v. Parris

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

November 27, 2017

JACKIE D. SEYMORE #411539, Petitioner,
v.
MICHAEL W. PARRIS, Respondent.

          MEMORANDUM AND ORDER

          ALETA A. TRAUGER, UNITED STATES DISTRICT JUDGE.

         Petitioner Jackie D. Seymore, an inmate in the Turner Trousdale Correctional Center in Hartsville, Tennessee, filed a petition for the writ of habeas corpus under 28 U.S.C. § 2254, which was referred to the Magistrate Judge for case management, decision on all pretrial, nondispositive motions, and report and recommendation on disposition under 28 U.S.C. § 636(b)(1). (ECF No. 27.) The respondent has filed an answer and asserted that the court should dismiss the petition with prejudice (ECF No. 26), and the petitioner filed a reply. (ECF No. 33.) Pending before the court are the Report and Recommendation (“R & R”) of the Magistrate Judge that the petition be dismissed (ECF No. 34), and objections filed by the petitioner. (ECF No. 35.)

         I. STANDARD OF REVIEW

         When a magistrate judge issues an R & R regarding the disposition of a claim or a case, the district court must review de novo any portion of the R & R to which a specific objection is made, and “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1)(C); United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001); Massey v. City of Ferndale, 7 F.3d 506, 510 (6th Cir. 1993). Federal courts have routinely deemed objections “waived” where the objections merely restate the party's arguments that were previously addressed by the magistrate judge. See VanDiver v. Martin, 304 F.Supp.2d 934, 937 (E.D. Mich. 2004) (“An ‘objection' that does nothing more than state a disagreement with a magistrate's suggested resolution, or simply summarizes what has been presented before, is not an ‘objection' as that term is used in this context.”); see also Charles v. Astrue, No. 3:10-cv-134, 2011 WL 3206464 (E.D. Tenn. July 28, 2011).

         The petitioner's objection addresses three of his four habeas claims, which the court will review in sequence below. To the extent that he relies on his previous reply or asserts a blanket challenge to issues not specifically discussed in the objection, his objection is waived for the reasons explained above.

         II. CLAIM 1

         The petitioner alleged in Claim 1 that trial counsel was ineffective for failing “to consult with or call a medical expert . . . to review or challenge the medical evidence of penetration.” (ECF No. 1, at 4.) His objection does not dispute the Magistrate Judge's finding that this claim was procedurally defaulted because it was never raised in state court. (See ECF No. 34, at 4-8; ECF No. 35, at 2-3.) Instead, the petitioner argues that he has cause to overcome the default because his post-conviction counsel was ineffective for failing to raise it, and because Tennessee's post-conviction scheme would not have allowed him the necessary funds to develop the claim. (ECF No. 35, at 2-3.) Accordingly, he asks the court to appoint counsel and authorize payment for investigative and expert services to develop this claim now.

         The petitioner's claim, however, is fundamentally flawed because there was no “medical evidence of penetration” at trial that counsel had any need to rebut. The nurse practitioner who examined the victim on March 17, 2008, testified that her anal-genital exam was within normal limits, which was to be expected given the length of time between the rape and the examination. (ECF No. 19-14, at 108-09.) As the petitioner himself argues, the report “neither confirm[ed] nor rule[d] out the possibility of sexual contact, ” (ECF No. 35, at 5) so it did not constitute evidence of penetration. He argues that if counsel had properly investigated and consulted an expert, “he would likely have discovered that qualified medical experts could be found who would testify that the prosecution's physical evidence was not indicative of sexual penetration and thereby provided no corroboration of the victim's story, ” (ECF No. 35, at 6-7), but the nurse's testimony and report on its face already provided no medical corroboration of the reported rape.

         Accordingly, this claim lacks the merit required to be “substantial” for the purpose of Martinez v. Ryan, 566 U.S. 1 (2012), without regard to whether the petitioner could satisfy the other Martinez factors required to overcome procedural default.

         III. CLAIM 3

         In Claim 3, the petitioner alleged that “[c]ounsel was ineffective for failing to object to the changes in the indictment or to bring out at trial changes in the indictment that established that the alleged crimes occurred [when he] was in jail.” (ECF No. 1, at 8.) The Magistrate Judge has concluded that the state court's rejection of this claim on the merits was not unreasonable, even though the state court only addressed the deficient performance prong of the ineffective-assistance analysis set forth in Strickland v. Washington, 466 U.S. 668 (1984), and not the prejudice prong. (ECF No. 34, at 11.)

         The petitioner continues to argue that this court should review his claim de novo, with no deference to the state court's decision, because that court only addressed one prong of the Strickland analysis. The petitioner is correct that when a state court limits its ruling to one prong of Strickland, a reviewing habeas court that reaches the second prong must review that prong de novo. See Wiggins v. Smith, 539 U.S. 510, 534 (2003) (“In this case, our review is not circumscribed by a state court conclusion with respect to prejudice, as neither of the state courts below reached this prong of the Strickland analysis.”). But a federal court will only reach that second prong if it finds that the state court's determination of the first prong was unreasonable, as the Supreme Court did in Wiggins. Id. Otherwise, there is no need to address both prongs at all: “there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland v. Washington, 466 U.S. 668, 697 (1984).

         The Magistrate Judge correctly concluded that the state court's determination that counsel's performance in “vigorously challeng[ing] the State's timeline of the offenses” was not deficient was not unreasonable. (See ECF No. 34, at 11.) The ...


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