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Smith v. Carpenter

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

January 8, 2018

OSCAR SMITH, Petitioner,
WAYNE CARPENTER, Warden, Respondent.



          Aleta A. Trauger United States District Judge.

         The petitioner, Oscar Franklin “Frank” Smith, was convicted and sentenced to death for the murder of his estranged wife and two stepsons, based on evidence including the following:

At approximately 11:20 p.m. on Sunday, October 1, 1989, the police received a 911 call from Judy Smith's home. On the tape of that call (later technically enhanced for trial) a victim shouts, among other things, “Frank, no. God, help me!” before the call abruptly ends. Officers arrived at the house five minutes later, heard nothing, received no answer at the front door, and considered it a false call. The following afternoon, the bodies of Judy Smith, Frank Smith's estranged wife, and his two stepsons, Jason and Chad, were found dead. . . .
According to the medical examiner, the three victims died at least twelve hours before they were found. . . . Police found a bloody hand print on the sheet next to Judy's body. Sergeant Johnny Hunter, who examined the print, testified that it matched Smith's left hand, which was missing the two middle fingers.

Smith v. Bell, 381 Fed.Appx. 547, 548 (6th Cir. 2010), cert. granted, judgment vacated sub nom. Smith v. Colson, 566 U.S. 901 (2012). The petitioner originally sought habeas corpus relief pursuant to 28 U.S.C. § 2254 on August 5, 1999. (DE #1.) The court held an evidentiary hearing on November 24, 2003, on the petitioner's claims that trial counsel was ineffective at the guilt phase of trial in connection with their investigation of the victims' time of death, the bloody hand print on the sheet, and a knife found under the victims' home.[1] (DE ##116, 179.) This court denied the petition on September 30, 2005 (DE ##201, 202), and the United States Court of Appeals for the Sixth Circuit affirmed the denial in June 2010. Smith v. Bell, 381 Fed.Appx. 547 (6th Cir. 2010). The case has since been remanded to this court for further consideration in light of the intervening decisions in Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 133 S.Ct. 1911 (2013), which now clearly apply to habeas petitions arising in this state. Sutton v. Carpenter, 745 F.3d 787 (6th Cir. 2014). The court has permitted limited discovery on the claims that were potentially subject to reconsideration (DE ##250, 265, 281, 294), and the parties have fully briefed the remaining issues and the petitioner's request for another evidentiary hearing. (DE ##297, 298, 299.)

         The court will deny petitioner's request for an evidentiary hearing and dismiss this matter for the reasons set forth below. It is unnecessary at this stage for the court to repeat its lengthy description of the evidence and legal analysis set forth in its previous memorandum opinion (DE #201), but it does reference and rely on that analysis as necessary below.


         Ordinarily, when a habeas petitioner has failed to fully exhaust a claim in state court and is now unable to do so because of a statute of limitations or other state procedural rule, the claim is considered to be procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 752-53 (1991). Except in cases where the petitioner can establish that he is actually innocent, federal habeas review of the merits of defaulted claims is prohibited unless the petitioner demonstrates cause for, and prejudice from, his default. Alley v. Bell, 307 F.3d 380, 386 (6th Cir. 2002). At the time the court denied this petition in 2005, “the law [was] firmly settled that ineffective assistance of counsel in state post-conviction proceedings can never establish cause, because there is no constitutional right to effective assistance of counsel in such collateral proceedings in the first place.” (DE #201, at 41-42 (citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), Coleman, 501 U.S. at 742-53, and Ritchie v. Eberhart, 11 F.3d 587, 590 (6th Cir. 1993)).) This court applied that rule in holding that several of the petitioner's claims were procedurally defaulted and not subject to review on habeas corpus. (DE #201.)

         Several years after that decision, the Supreme Court held in Martinez that, in certain circumstances, “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial, ” and the Sixth Circuit has held that this Martinez exception applies in Tennessee. Martinez, 566 U.S. at 9; Sutton v. Carpenter, 745 F.3d 787, 795-96 (6th Cir. 2014). To overcome default under Martinez, a petitioner must show that post-conviction counsel was ineffective during the “initial-review collateral proceeding, ” Martinez, 566 U.S. at 16, and that the underlying ineffective-assistance-of-trial-counsel [IATC] claim is a “substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.” Id. at 14.

         The Sixth Circuit has provided the following framework to evaluate claims under Martinez:

As to these claims, the district court should determine . . .: (1) whether state post-conviction counsel was ineffective, . . . and (2) whether [Petitioner's] claims of ineffective assistance of counsel were “substantial” within the meaning of Martinez, Sutton, and Trevino. Questions (1) and (2) determine whether there is cause. The next question is (3) whether [Petitioner] can demonstrate prejudice. Finally, the last step is: (4) if the district court concludes that [Petitioner] establishes cause and prejudice as to any of his claims, the district court should evaluate such claims on the merits. . . . [E]ven “[a] finding of cause and prejudice does not entitle the prisoner to habeas relief. It merely allows a federal court to consider the merits of a claim that otherwise would have been procedurally defaulted.” Martinez, [566 U.S. at 17].

Atkins v. Holloway, 792 F.3d 654, 660 (6th Cir. 2015) (some internal citations omitted).

         Whether post-conviction counsel was constitutionally ineffective is necessarily connected to the strength of the claim he failed to raise, so “in many habeas cases seeking to overcome procedural default under Martinez, it will be more efficient for the reviewing court to consider in the first instance whether the alleged underlying ineffective assistance of counsel was ‘substantial' enough to satisfy the ‘actual prejudice' prong of Coleman.” Thorne v. Hollway, No. 3:14-CV-0695, 2014 WL 4411680, at *23 (M.D. Tenn. Sept. 8, 2014), aff'd sub nom. Thorne v. Lester, 641 Fed.Appx. 541 (6th Cir. 2016).

         All federal ineffective-assistance claims are subject to the highly deferential two-prong standard of Strickland v. Washington, 466 U.S. 668 (1984), which asks: (1) whether counsel was deficient in representing the defendant; and (2) whether counsel's alleged deficiency prejudiced the defense so as to deprive the defendant of a fair trial. Id. at 687. To satisfy the first prong, a petitioner must establish that his attorney's representation “fell below an objective standard of reasonableness, ” and must overcome the “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that . . . the challenged action ‘might be considered sound trial strategy.'” Id. at 688, 689. The “prejudice” component of the claim “focuses on the question of whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). The prejudice prong, under Strickland, requires 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. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.


         A. Claims Not Raised in State Court

         The respondent insists that the restrictions on the presentation of new evidence during federal habeas proceedings in § 2254(e)(2)[2] apply to the petitioner's defaulted claims under reconsideration pursuant to Martinez, and that this court's review is confined to the state court record. (DE #298, at 4-12.) The respondent devotes much of his brief to arguing that the petitioner's IATC claims are not based on new law or facts that could not have been presented during his post-conviction proceedings. No one disputes those circumstances; indeed, the very nature of the Martinez analysis is that it only applies to claims that post-conviction counsel could have timely raised in state court but failed to.[3]

         For Martinez to have any meaning at all, a petitioner seeking to pursue a defaulted IATC claim must be able to present a federal court with evidence of his post-conviction counsel's ineffectiveness and of the substantial nature of his underlying claim - evidence that, by the very nature of the circumstances, was never presented in state court. Such new evidence goes to the issue of cause and prejudice to overcome the default, and “[w]hen a petitioner asks for an evidentiary hearing on cause and prejudice, neither section 2254(e)(2) nor the standard of cause and prejudice that it replaced apply.” Henry v. Warden, Georgia Diagnostic Prison, 750 F.3d 1226, 1231-32 (11th Cir. 2014); accord, e.g., Cristin v. Brennan, 281 F.3d 404, 413 (3d Cir. 2002) (“We conclude that the plain meaning of § 2254(e)(2)'s introductory language does not preclude federal hearings on excuses for procedural default at the state level, and therefore the District Court did not err in conducting such a hearing in Cristin's case.”); Mitchell v. Hill, No. CIV 06-844-BR, 2009 WL 2949330, at *3 (D. Or. Sept. 9, 2009) (“Generally, 28 U.S.C. § 2254(e)(2) limits a habeas petitioner's ability to expand the record to the same extent that it limits the availability of an evidentiary hearing. Holland v. Jackson, 542 U.S. 649, 652 (2004). However, § 2254(e)(2) does not apply to expansion of the record to overcome a procedural default. Buckman v. Hall, 2009 WL 204403 *1 (D.Or. 2009) (citations omitted). In such a case, Rule 7 grants the district court discretion to expand the record. Vasquez v. Hillery, 474 U.S. 254, 258 (1986).”). The petitioner's assertion that he can overcome default pursuant to Martinez is simply not a “claim” to which § 2254(e)(2) would apply. Rather, it is a procedural matter in which the court has the discretion to determine whether and to what extent to hear new evidence. See Segundo v. Davis, 831 F.3d 345, 351 (2016) (holding that the district court did not abuse its discretion in denying a hearing to determine whether claim satisfied Martinez because the record contained sufficient facts to make that determination).

         None of the cases on which the respondent relies convinces the court otherwise. The Fifth Circuit in Newbury v. Stephens, 756 F.3d 850 (5th Cir. 2014), observed that the respondent in that case raised § 2254(e)(2) as a bar to the petitioner's new evidence, but it did not reach that issue. Instead, the Fifth Circuit found that the district court had properly rejected the petitioner's claim even after thorough review of the petitioner's newly presented evidence. Id. at 874 (“Because the district court addressed the merits of Newbury's IATC claim, including the evidence presented for the first time in federal court, it is not arguable but that Newbury has already received all of the relief available to him under the authority of Martinez and Trevino. Considering all of Newbury's evidence, including that presented for the first time in federal court, reasonable jurists would not debate the district court's decision that Newbury's IATC claim lacks merit.”). The Tenth Circuit did not even mention § 2254(e) in Carter v. Bigelow, 787 F.3d 1269 (10th Cir. 2015). It held that Cullen v. Pinholster, 563 U.S. 170 (2011), prevented it from considering new evidence on the petitioner's claim that counsel was ineffective with regard to mitigation evidence and noted that Martinez did not apply, because the claim was not defaulted but had been rejected on its merits in state court. Carter, 787 F.3d at 1290 n.19. Similarly, in an unreported case on which the respondent relies, the District Court for the Northern District of Ohio held that Martinez did not entitle the petitioner to further develop the record in a case where the underlying claim was exhausted and rejected on the merits in state court and was not an IATC claim. Hill v. Anderson, No. 4:96 CV 00795, 2012 WL 2826973 (N.D. Ohio July 10, 2012). Thus none of these cases supports the respondent's argument that § 2254(e) prohibits new evidence in support of an asserted right to review of a defaulted claim pursuant to Martinez.

         Of the four cases the respondent cites, only the unreported decision by the District of South Carolina in Fielder v. Stevenson, No. 2:12-cv-00412, 2013 WL 593657 (D. S.C. Feb. 14, 2013), actually held that § 2254(e) limits the admission of new evidence in the context of a Martinez analysis. But even Fielder said that the bar on new evidence applies only to evidence about the underlying claim, and not to evidence that would establish cause and prejudice under Martinez. Fielder at *3 (“[C]ourts have held that § 2254(e)(2) does not similarly constrain the court's discretion to expand the record to establish cause and prejudice to excuse a petitioner's procedural defaults. In such cases, the court retains its discretion to expand the record to allow a petitioner to establish cause and prejudice to excuse a petitioner's procedural defaults.”) (citations omitted). But some evidence about the merit of the underlying IATC claim is necessarily relevant to the Martinez analysis itself, which requires a petitioner to demonstrate that the claim is substantial, “which is to say that the prisoner must demonstrate that the claim has some merit, ” Martinez, 566 U.S. at 14; Carpenter v. Davis, No. 3:02-CV-1145-B-BK, 2017 WL 2021415, at *3 (N.D. Tex. May 12, 2017) (“The evidence required to show . . . that the claim of ineffective assistance of trial counsel is substantial and, therefore, comes within the exception to procedural bar created in Martinez, will likely be much of the same evidence needed to prove the merits of the underlying claim.”). And again, because the very nature of a claim subject to Martinez analysis is that it was never presented in state court, the Martinez exception would be a farce if a petitioner could succeed in establishing cause and prejudice to overcome the default of a substantial claim but then be barred from proving the claim. Accordingly, to the extent that the petitioner offers new evidence in connection with his never-before-raised IATC claims, the court properly considers that evidence.

         B. Claims Raised in State Court

         The respondent is correct, however, with regard to claims that were raised in state court, which petitioner essentially seeks to have this court rehear with new evidence. When the court authorized the petitioner to conduct discovery in this case more than two years ago, it commented on a lack of clarity in the case law about whether the Martinez exception is limited to claims that were never heard at all in state court, as was the case in Martinez, or is broad enough to encompass claims that were raised but then (allegedly) ineffectively prosecuted by post-conviction counsel. (DE #250, at 4-7.) Accordingly, it withheld judgment on that issue and permitted the petitioner to conduct the requested discovery but cautioned that “the court may ultimately agree with the respondent that [such claims] are not subject to reconsideration on the basis of Martinez.” (Id. at 7.) Today it does so agree, after review of the parties' briefs and of the current state of the pertinent case law. A federal habeas court's review of “any claim that was adjudicated on the merits in State court proceedings” is limited to the evidence presented in the state proceeding, 28 U.S.C. § 2254(d); Pinholster, 563 U.S. at 181-82, and the Martinez exception to enable review of procedurally defaulted claims simply does not apply in such circumstances.

         There are decisions still standing even within this circuit to the contrary, see Haight v. White, No. 3:02-CV-P206-S, 2013 WL 5146200, at *8 (W.D. Ky. Sept. 12, 2013) (“Martinez is clear that errors by post-conviction attorneys in collateral proceedings that rise to the level of ineffective assistance of counsel may be sufficient to establish cause for a procedural default of an ineffective assistance of trial counsel claim. That is so whether the post-conviction attorney entirely failed to raise the claim or raised the claim, but did so in a manner that was insufficient to meet prevailing professional standards.”), but the court is convinced that the weight of authority, particularly in the Sixth Circuit, is that Martinez does not apply to claims that were raised and reviewed on their merits in state court. To his credit, the petitioner concedes that Martinez review of such claims is foreclosed in this circuit, citing Moore v. Mitchell, 708 F.3d 760 (6th Cir. 2013), but asserts that Moore was wrongly decided and that the court should nevertheless apply Martinez to allow new evidence and further consideration of the IATC claims he alleges post-conviction counsel presented ineffectively. (DE #297, at 30-31.) The relevant portions of Moore are as follows:

Moore claims that trial counsel was ineffective at mitigation because Moore's expert witness gave damaging testimony during cross examination. Moore argues that this would not have happened if trial counsel been prepared and known how the expert was going to testify.
On direct appeal, proceeding with different counsel before the Ohio Supreme Court, Moore raised the claim that his trial counsel did not prepare adequately based on this exchange. There was no evidence before the state court other than the trial transcript. The court denied his claim, finding that Moore had failed to show deficient performance and failed to show prejudice. On state post-conviction relief, Moore asked for an evidentiary hearing and/or discovery, but the court denied his request and denied relief.
Moore is not asking that we afford a Martinez-like review of a procedurally defaulted claim, but rather that we turn Martinez into a route to circumvent Pinholster. Moore's argument is not merely that Martinez permits us to review the merits of his claim; we already do that below, albeit through the lens of AEDPA deference, and Martinez is irrelevant to that analysis. Instead, he argues that we should remand to allow factual development of his allegation that collateral counsel was ineffective, and then, if collateral counsel is found ineffective on that newly developed record, permit that record to inform his ultimate claim for relief regarding whether trial counsel was ineffective. In other words, he wants this Court to grant him permission to obtain new facts to challenge the Ohio Supreme Court's rejection of his ineffective assistance of trial counsel claim. As explained above, though, Pinholster plainly bans such an attempt to obtain review of the merits of claims presented in state court in light of facts that were not presented in state court. Martinez does not alter that conclusion.

Id. at 778, 779, 785 (citations omitted). As a case in which the petitioner's IATC claim was heard on direct appeal and a post-conviction hearing was denied, Moore presented a slightly different circumstance than this case, but it still stands for the proposition that, once a state court has heard a ...

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