United States District Court, M.D. Tennessee, Nashville Division
JACKIE D. SEYMORE #411539, Petitioner,
MICHAEL W. PARRIS, Respondent.
MEMORANDUM AND ORDER
A. TRAUGER, UNITED STATES DISTRICT JUDGE.
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.)
STANDARD OF REVIEW
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).
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
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.
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.
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.
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.)
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,
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 ...