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Clark v. Perry

United States District Court, W.D. Tennessee, Eastern Division

May 22, 2019

VICTOR CLARK, Petitioner,
GRADY PERRY, Respondent.



         Petitioner 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.[1]


         In 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. 19-5.)

         At the 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. Id.

         On 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.” Id.

         Tyus 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.

         The 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.)

         Clark 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.

         On June 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.)


         Respondent, 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 2.)

         I. Legal Standards

         A. Habeas Review and Procedural Default

         The 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).

         The 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)) (citations omitted)).

         A state 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.

         For 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 omitted).

         Before 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 ...

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