United States District Court, W.D. Tennessee, Eastern Division
ORDER DIRECTING CLERK TO MODIFY RESPONDENT, DENYING
§ 2254 PETITION, DENYING CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE.
Victor Clark has filed a pro se habeas corpus
petition (the “Petition”), pursuant to 28 U.S.C.
§ 2254. (ECF No. 1.) For the reasons that follow, the
Petition is DENIED.
2013, a Madison County, Tennessee, grand jury charged Clark
with two counts of attempted second degree murder, two counts
of aggravated assault, one count of reckless endangerment,
and one count of employing a firearm during the commission of
a dangerous offense. (ECF No. 19-1 at 6-12.) His
co-defendant, Kentavis Jones, was similarly charged.
(Id.) The defendants were tried together. (ECF No.
jury trial, the victims, Luteika Tyus and Antonio White,
testified to events that transpired at their home on the day
of the offenses. Clark v. State, No.
W2015-00186-CCA-R3-PC, 2016 WL 1250985, at *1-2 (Tenn. Crim.
App. Mar. 30, 2016). According to both witnesses, Tyus and
Clark's mother were engaged in an “altercation . .
. regarding messages . . . Tyus had written on Facebook
alleging that [Clark] had broken into [their] home.”
Id. at *1. After the altercation moved outside, Tyus
“saw [Clark] and [his co-defendant] Jones exit the
alley next to [her] home.” Id. “As [the
men] approached, . . . Tyus asked . . . White to come
outside.” Id. White testified that he exited
the house “with a gun and told [Clark] ‘Stay over
there on your side of the street and don't come over here
because I've got something for you.'”
Id. After White and Tyus “went back inside
their home, [Clark] and . . . Jones fired several shots at
[the] house.” Id. A bullet struck Tyus's
hand. Id. White testified that he believed that a
third individual had fired into the back of the home.
cross-examination, White “admitted that he had
‘an issue' with [Clark] because [Clark] had broken
into his house and truck and [had] stolen some of his
property, ” but he also conceded that “no charges
[had been] filed against” the defendant. Id.
He acknowledged that, inconsistent with his trial testimony,
the written statement he gave to the police “only
identified [Clark] as the shooter and did not mention . . .
Jones.” Id. He insisted that he told the
officer that Jones was one of the shooters, but that the
officer “wrote down [his] statement incorrectly.”
admitted on cross-examination “that she called . . .
White outside before the shooting because she wanted him to
fight” Clark. Id. Although she had testified
that “she did not see . . . White carrying a gun when
he came outside, ” she conceded that she testified at
the preliminary hearing that White had a gun
“out.” Id. (internal quotation marks
omitted). Tyus “admitted that she did not like”
Clark, and that “prior to the shooting, she posted a
comment on Ghetto News about” Clark and Jones stealing
from their neighbors. Id. at *1-2.
defense did not present any proof. Id. at *2. The
jury acquitted Clark on both counts of attempted second
degree murder, and convicted him on two counts of aggravated
assault, reckless endangerment, and employing a firearm
during the commission of a felony. Id. A notice of
appeal was filed, but the appeal was later voluntarily
dismissed by Petitioner through his appointed counsel. (ECF
No. 19-9 at 1-4.)
filed a pro se post-conviction petition in state
court (ECF No. 19-11 at 3-16), which was amended by appointed
counsel (id. at 28-33). Following an evidentiary
hearing, the post-conviction trial court denied relief
(id. at 38-42), and the TCCA affirmed,
Clark, 2016 WL 1250985, at *6.
17, 2016, Clark filed his Petition. He asserts that
“[t]he court erred in giving any significant weight to
the testimony of the alleged victims due to the
inconsistencies [in their] statements” (Claim 1), that
the evidence was insufficient to support his conviction for
employing a firearm during the commission of a dangerous
felony (Claim 2), and that his trial counsel rendered
ineffective assistance by “refus[ing] to allow [him] to
testify and present [a] self-defense theory” (Claim 3)
and by failing to call a defense witness (Claim 4). (ECF No.
1 at 5, 6, 8, 10.)
Grady Perry, filed the state-court record (ECF No. 19) and an
answer (ECF No. 20) to the Petition. He argues that one of
Petitioner's claims must be denied on the merits, and the
remaining claims are not properly before the Court because
they are procedurally defaulted. Petitioner did not file a
reply, although allowed to do so. (See ECF No. 10 at
Habeas Review and Procedural Default
statutory authority for federal courts to issue habeas corpus
relief for persons in state custody is provided by §
2254, as amended by the Antiterrorisim and Effective Death
Penalty Act (“AEDPA”). See 28 U.S.C.
§ 2254. Under § 2254, habeas relief is available
only if the prisoner is “in custody in violation of the
Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a).
availability of federal habeas relief is further restricted
where the petitioner's claim was “adjudicated on
the merits” in the state courts. 28 U.S.C. §
2254(d). In that circumstance, the federal court may not
grant relief unless the state-court decision
“‘was contrary to' federal law then clearly
established in the holdings of [the Supreme] Court; or that
it ‘involved an unreasonable application of' such
law; or that it ‘was based on an unreasonable
determination of the facts' in light of the record before
the state court.” Harrington v. Richter, 562
U.S. 86, 100 (2011) (quoting 28 U.S.C. § 2254(d)(1)-(2))
court's decision is contrary to federal law when it
“arrives at a conclusion opposite to that reached by
[the Supreme] Court on a question of law, ” or when
“the state court confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent and
arrives at” an “opposite” result.
Williams v. Taylor, 529 U.S. 362, 405 (2000). An
unreasonable application of federal law occurs when the state
court, having invoked the correct governing legal principle,
“unreasonably applies the . . . [principle] to the
facts of a prisoner's case.” Id. at 409.
purposes of § 2254(d)(2), a state court's
“factual determination is not unreasonable merely
because the federal habeas court would have reached a
different conclusion in the first instance.” Wood
v. Allen, 558 U.S. 290, 301 (2010). The Sixth Circuit
construes § 2254(d)(2) in tandem with § 2254(e)(1)
to require a presumption that the state court's factual
determination is correct in the absence of clear and
convincing evidence to the contrary. Ayers v.
Hudson, 623 F.3d 301, 308 (6th Cir. 2010) (citing
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). A
state court's factual findings are therefore “only
unreasonable where they are ‘rebutted by clear and
convincing evidence and do not have support in the
record.'” Moritz v. Woods, 692 Fed.Appx.
249, 254 (6th Cir. 2017) (quoting Pouncy v. Palmer,
846 F.3d 144, 158 (6th Cir. 2017)) (internal quotation marks
a federal court will review the merits of a claim brought
under § 2254, the petitioner must have “exhausted
the remedies available in the courts of the State.” 28
U.S.C. § 2254(b)(1)(A). To be properly exhausted, a
claim must be “fairly presented” through
“one complete round of the State's ...