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Berry v. Mays

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

June 27, 2019

GDONGALAY PARLO BERRY, Petitioner,
v.
TONY MAYS, Warden, Respondent.

          MEMORANDUM OPINION

          WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE

         Gdongalay Parlo Berry, an inmate of the Riverbend Maximum Security Institution in Nashville, Tennessee, filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his convictions and sentence in the Davidson County Criminal Court for two counts of first-degree premeditated murder, two counts of first-degree felony murder, two counts of especially aggravated kidnapping, and two counts of especially aggravated robbery for which Petitioner is serving consecutive life sentences plus fifty years in the Tennessee Department of Correction. (Doc. No. 1).

         Presently pending before the Court is Respondent's answer to the habeas petition in which he asks the Court to dismiss the petition. (Doc. No. 35). Petitioner filed a response in opposition to the answer. (Doc. No. 39).

         The petition is ripe for review, and this Court has jurisdiction pursuant to 28 U.S.C. § 2241(d). Having fully considered the record, the Court finds that an evidentiary hearing is not needed, and Petitioner is not entitled to relief. The petition therefore will be denied and this action will be dismissed.

         II. Procedural History

         Petitioner was convicted by a Davidson County jury of two counts of premeditated murder, two counts of felony murder, two counts of especially aggravated kidnapping, and two counts of especially aggravated robbery. (Doc. No. 1, Attach. 1, at PageID 635). Following a capital sentencing hearing, the court imposed a sentence of death on each of the first-degree murder convictions based upon the jury's finding of three aggravating factors: prior violent felonies, murder committed for the purpose of avoiding prosecution, and murder committed during commission of a robbery or kidnapping. State v. Berry, No. M2001-02023-CCA-R3-DD, 2003 WL 1855099, at *1 (Tenn. Crim. App. Apr. 10, 2003). The jury also found that these aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt. Id. The court subsequently imposed an effective fifty-year consecutive sentence on the remaining convictions. (Doc. No. 1, Attach. 1, at PageID 620-21, 631-34, 635-36). After sentencing, the trial court merged each felony murder count into the premeditated murder counts for each respective victim, leaving Petitioner with two first-degree murder convictions. State v. Berry, 141 S.W.3d 549, 553 n.1 (Tenn. 2004).

         Petitioner appealed, and Tennessee Court of Criminal Appeals affirmed his convictions and sentences. State v. Berry, 141 S.W.3d 549 (Tenn. 2004). Pursuant to Tennessee Code Annotated § 39-13-206 (2003), an appeal was automatically docketed in the Tennessee Supreme Court. After hearing oral argument, the Tennessee Supreme Court affirmed Petitioner's convictions and sentences. 141 S.W.3d 549, 554.

         Petitioner then filed a pro se petition for post-conviction relief in state court. (Doc. No. 33, Attach. 39, at PageID 4341). Appointed counsel later filed an amended petition. (Doc. No. 33, Attach. 43, at PageID 4866). With the aid of counsel, Petitioner also filed a second amended petition for post-conviction relief adding new grounds for relief. Berry v. State, 366 S.W.3d 160, 167 (Tenn. Crim. App. 2012), perm. app. denied (Feb. 16, 2012). During the pendency of the post-conviction proceedings, Petitioner was granted post-conviction relief on a separate homicide conviction; that conviction had been used as an aggravating circumstance in Petitioner's death penalty case. (Doc. No. 33, Attach. 42, at PageID 4774). After an evidentiary hearing in the instant case on Petitioner's post-conviction petition, the post-conviction court affirmed the convictions but granted a new capital sentencing hearing, finding that the use of the vacated prior conviction as an aggravating factor was not harmless error. (Doc. No. 33, Attach. 42, at PageID 4774-4856).

         On appeal, the Tennessee Court of Criminal Appeals affirmed the denial of the post-conviction petition and the ordering of a new sentencing hearing. Berry, 366 S.W.3d 160, 165. The Tennessee Supreme Court denied discretionary review. Id. at 160. The United States Supreme Court denied the petition for writ of certiorari. Berry v. Tenn., 568 U.S. 840 (2012).

         Petitioner then filed a petition for writ of error coram nobis, alleging that the State committed a Brady violation by not disclosing the video interview of witness Yakou Murphy. (Doc. No. 33, Attach. 60, at PageID 9076-79). After an evidentiary hearing, the trial court denied the petition. (Doc. No. 33, Attach. 66, at PageID 9435). The Tennessee Court of Criminal Appeals affirmed the lower court's decision. Berry v. State, No. M2015-00052-CCA-R3-ECN, 2016 WL 1161216, at *1 (Tenn. Crim. App. Mar. 23, 2016), perm. app. denied (Mar. 23, 2016). The Tennessee Supreme Court denied discretionary review. Id.

         The trial court stayed the resentencing proceedings on remand until Petitioner completed his appeal of the denial of error coram nobis relief. (Doc. No. 33, Attach. 77, at PageID 10180). At Petitioner's resentencing on the capital offenses, the State withdrew its notice of intent to seek the death penalty and moved the court for consecutive sentencing. (Id. at 10162-63). After a hearing, the trial court imposed consecutive life sentences for the murder convictions. (Id. at 10178). The Tennessee Court of Criminal Appeals affirmed the new judgments. State v. Berry, No. M2017-00867-CCA-R3-CD, 2018 WL 3912302 (Tenn. Crim. App. Aug. 15, 2018), perm. app. denied (Aug. 15, 2018). The Tennessee Supreme Court again denied discretionary review. Id.

         On June 23, 2017, [1] Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1 at 24). By Order entered on September 7, 2017, the Court ordered Respondent to file an answer, plead or otherwise respond to the petition. (Doc. No. 7). Respondent filed a motion to dismiss the habeas corpus petition without prejudice because Petitioner's state court judgments were not yet final. (Doc. No. 11). The Court denied the motion to dismiss and stayed the habeas corpus proceedings while Petitioner completed his resentencing appeal in state court. (Doc. No. 21). Once those proceedings concluded, the Court reopened this case and ordered Respondent to file the state court record and respond to the habeas corpus petition. (Doc. No. 25).

         Respondent filed a response to the habeas petition on May 3, 2019, in which he concedes that the petition is timely and asks the Court to dismiss the petition. (Doc. No. 35).

         In his petition, Petitioner asserts these claims for relief:

1. Petitioner's resentencing violated the Double Jeopardy Clause; 2. The State engaged in misconduct and violated Brady v. Maryland by not disclosing: a. The juvenile court record of Calvin Carter; b. The juvenile court record of Antonio Cartwright; and c. The video-recorded interview of Yakou Murphy; 3. The trial court violated Petitioner's right to a fair trial and due process by automatically excluding members of the prospective jury panel who indicated that they could not impose the death penalty; 4. Petitioner received ineffective assistance of trial counsel because counsel failed to raise the State's failure to preserve the following evidence:
a. A video-recorded interview of Petitioner; b. Fingerprint evidence from the murder weapon and guns stolen from the victims; and c. The statement of James Frierson; 5. Cumulative errors in the state courts require reversal; 6. Petitioner was denied his right to a speedy trial; and 7. Petitioner is actually innocent. (Doc. No. 1).

         III. Summary of the Evidence

         The Tennessee Court of Criminal Appeals summarized the proof adduced during the guilt phase of Petitioner's jury trial as follows:

The nineteen-year-old defendant, Gdongalay Berry, was convicted of the first-degree premeditated murders, kidnappings, and robberies of nineteen-year-old DeAngelo Lee and eighteen-year-old Greg Ewing. The State's proof showed that the defendant and a separately tried co-defendant, Christopher Davis, arranged to purchase weapons for $1200 from Lee and Ewing on the evening of February 27, 1996. Earlier that evening, the defendant and Davis were at Davis's apartment drinking and smoking marijuana with Ronald Benedict, Antoine Kirby, and Antonio Cartwright. Cartwright testified at trial that he overheard Davis and the defendant talking about robbing the two victims and taking their guns and automobile. Cartwright testified that the defendant stated, “If we rob 'em, we gotta kill 'em ... [b]ecause they know us.'' Between 7:30 and 8:00 p.m. that evening, after receiving a telephone call from Lee, the defendant, Davis, and two other men identified as “Kay” and “Sneak” left the apartment. Both the defendant and Davis were armed with guns-Davis with a 9mm handgun, the defendant with a .45 caliber handgun. Davis also carried a black bag containing handcuffs, rope, and duct tape. Approximately thirty minutes later, Kay and Sneak returned to the apartment. Thirty to forty-five minutes after that, the defendant and Davis also returned. They were driving Lee's Cadillac and were carrying at least six assault weapons, some pagers, and clothing, including Lee's distinctive green and yellow tennis shoes, and Ewing's jacket. Davis was wearing a gold cross necklace that belonged to Lee. The defendant told Cartwright that “Chris [Davis] couldn't kill Greg [Ewing], so I had to, ” and announced that he had shot Ewing multiple times in the head. After placing the assault weapons under Davis's bed, the defendant and Davis left the apartment in Lee's Cadillac and another vehicle. They drove to a sparsely wooded residential area off a dead-end street, set fire to the interior of the Cadillac, and abandoned it. The men then went to a Nashville motel where they spent the night.
The next morning, Ewing's and Lee's bodies were found lying on a hill at a construction site in south Nashville near Interstate 440. Both victims were only partially clothed. A rope on the ground led up the hill to the body of one of the victims. Ewing had been shot three times in the head, twice in the shoulder, once in the neck, and once in the abdomen. Lee had been shot three times in the head and once in the hand. Ballistics testing showed that the weapons used to kill the victims were 9mm and .45 caliber handguns.
By coincidence, at approximately 9:00 a.m. on the same morning the victims' bodies were found, three detectives from the Metropolitan Police Department went to Davis's apartment to investigate an unrelated crime. While questioning two men present at the apartment, Ronald Benedict and Antonio Cartwright, the detectives noticed the automatic rifles under the bed in Davis's bedroom. At about this time, the defendant, Davis, Dimitrice Martin (Davis's girlfriend), and Brad Benedict (Ronald Benedict's brother), unexpectedly rushed through the front door. Davis was talking on a cell phone and had a .45 caliber handgun in his waistband. The defendant was carrying a fully loaded automatic rifle. Startled to see police present, the defendant, Davis, and Brad Benedict turned and fled out the front door. The detectives pursued them and caught Davis. Benedict and the defendant escaped, although the defendant dropped the rifle he had been carrying. This rifle turned out to be one of the weapons stolen from Lee and Ewing.
A subsequent search of Davis's apartment yielded a 9mm pistol underneath the cushion of the couch where Ronald Benedict had been sitting. Forensic testing later revealed that the 9mm caliber bullets recovered from the victims' bodies were fired from this gun. The .45 caliber gun used in the crime was never found. Among the items police found in Davis's bedroom were a pair of handcuffs with a key, a pager, a cell phone, a Crown Royal bag containing $1400 in cash, a black backpack, a large quantity of ammunition, Lee's green and yellow tennis shoes, Ewing's jacket, two .45 caliber pistols, two SKS rifles, and one Universal .30 caliber M-1 carbine. At the time of the search, however, officers were unaware that the items were connected to the murders of Ewing and Lee.
Davis and his girlfriend, Dimitrice Martin, were taken to the police station for questioning. Before his interview, Davis removed Lee's gold cross necklace and told Martin to put it in her purse. He also instructed Martin to call Ronald Benedict's girlfriend at the apartment and tell her to dispose of Lee's green and yellow tennis shoes.
As a result of the questioning of Davis and Martin, police discovered the connection between Davis, the defendant, and the murders of Lee and Ewing. The police took Lee's necklace from Martin. One of the detectives returned to Davis's apartment to retrieve Lee's tennis shoes and Ewing's jacket. While he found Ewing's jacket on Davis's bed, the tennis shoes were gone.
After the defendant was eventually arrested on March 6, 1996, he waived his Miranda rights and gave a statement to police in which he admitted that he had been with Davis when the victims were robbed and killed. He disavowed any active role in the crimes and claimed that he had not known Davis intended to kill the victims. According to the defendant, Davis and a third man, Christopher Loyal, had abducted Ewing and Lee after Ewing attempted to rob Davis. The defendant claimed that the victims were already handcuffed and restrained when he joined Davis and Loyal in the Cadillac. The group then drove to the construction site. Davis made the victims remove their clothing, and the defendant claimed he thought it would stop at that. As he watched, however, Davis and Loyal repeatedly shot the two men.
The jury returned a verdict at the conclusion of the guilt phase and found the defendant guilty of two counts of premeditated murder, two counts of felony murder, two counts of especially aggravated kidnapping, and two counts of especially aggravated robbery.

State v. Berry, 141 S.W.3d 549, 553-56 (Tenn. 2004). The Tennessee Court of Criminal Appeals summarized the proof adduced during the penalty phase of Petitioner's jury trial as follows:

During the penalty phase of trial, the State presented victim impact evidence through the testimony of the mothers of the two victims. Both mothers testified that they were close to their sons and that they missed their companionship. Ewing's mother, Brenda Sanders, testified that she did not know until the trial that her son had been shot seven times, or that he had screamed for his life prior to his death. She testified that it gave her a certain sense of closure to hear that evidence. There was no objection during the presentation of this victim impact evidence.
Next, the State presented certified copies of the defendant's 1994 conviction for aggravated assault, his two 1998 convictions for aggravated robbery, and his 1999 conviction for first-degree murder. The State also relied upon the proof presented during the guilt phase of the trial to support imposition of the death penalty.
Through the testimony of a mitigation expert and several members of his family, the defendant presented extensive information about his background. He was born prematurely on September 5, 1976, to Frieda Berry and Fred Black. His parents never married, and throughout his life he had only sporadic contact with his father, who served a ten-year prison sentence for robbery. When the defendant was a year old, his mother married Laurice Thomas, with whom she had two sons. The defendant's immediate family also included another, older half-brother, the child of the defendant's mother and a third man. The Thomas's marriage was described as hostile and volatile. Both Thomas and the defendant's mother had mental health problems. The defendant's mother was repeatedly institutionalized for mental illness and variously diagnosed with schizophrenia, depression with psychosis, and bipolar disorder. In 1982, while his wife and the children were present in the home, Laurice Thomas committed suicide by shooting himself in the bathroom. As a result, the defendant's mother had a mental breakdown, and the defendant and his half-brothers eventually went to live with their maternal grandmother and step-grandfather. At his grandmother's home, the defendant was part of a large family consisting of his siblings and aunts and uncles, who grew up with him like brothers and sisters. The defendant's grandmother and step-grandfather were described as hardworking people, who provided a good home for the defendant. After the defendant's mother remarried, the defendant's mother and grandmother engaged in litigation over the children's custody. The defendant's mother's second husband also committed suicide by jumping off a bridge and drowning.
The defendant had to repeat the fourth and eighth grades. He was described as a good boy, who did his chores and loved children. He participated in school sports and excelled at wrestling. At fourteen, the defendant was sent to an alternative school for fighting on the school bus and at school. His family testified that when he returned to high school the following year, he was singled out and strip searched. At the age of eighteen, while in the tenth grade, the defendant dropped out of school and left his grandmother's home. According to the defendant's family, the defendant's change in behavior occurred because of the bad influence of other teenagers. For a short time, the defendant lived with his older half-brother, but he was asked to move out because of visits from his friends, who sold drugs.
The defendant has one child, a son born on May 2, 1996. When he learned that his girlfriend was expecting a child, the defendant tried to commit suicide by overdosing on medication.
The defendant chose not to testify, and confirmed this decision during a jury-out hearing held pursuant to Momon v. State, 18 S.W.3d 152, 162 (Tenn.1999).
Dr. William Bernet, a forensic psychiatrist, interviewed the defendant and evaluated his mental status. Dr. Bernet noted that the defendant had three risk factors in his background. The first was a strong history of mental illness on both the maternal and paternal sides of his family. The second was a family history of criminal behavior. The third was the defendant's disturbed and disorganized family life, based on his having a young, unmarried mother, his stepfathers' suicides, frequent moves, a large, complicated household, the custody dispute between his mother and grandmother, and the like. Dr. Bernet indicated that the defendant exhibited some paranoid tendencies, had experienced auditory hallucinations, and was depressed. Dr. Bernet also opined that the defendant had been intoxicated on the day of these crimes, and that all of the above factors had interfered with his judgment in participating in the offenses. Dr. Bernet noted that since the defendant's incarceration, he had been involved in four violent incidents; one, an attack on a fellow inmate, hurt the victim so badly that he was treated in the intensive care ward.
In rebuttal, the State called Dr. Thomas Schacht, a clinical and forensic psychologist. Dr. Schacht had interviewed and tested the defendant. Dr. Schacht opined that prior tests administered to the defendant by another psychologist and relied upon by Dr. Bernet were problematic and potentially invalid. For example, the defendant had exhibited “high inconsistency” on a test to determine if he was malingering. Also, the defendant had been permitted to take the Minnesota Multi- Phasic Personality Inventory in his prison cell and had not completed all the answers; the defendant refused to complete the answers for Dr. Schacht. Another test, the Structure Interview of Reported Symptoms, indicated that the defendant was not reporting his mental symptoms accurately and that there was a fifty to eighty-one percent chance that he was feigning mental illness. Nevertheless, Dr. Schacht conceded that testing indicated that the defendant had some paranoid traits and perhaps even suffered from a paranoid personality disorder. Dr. Schacht described the specifics of the four prior violent episodes in prison, which included, in addition to the above-described assault on the other prisoner, his breaking the sprinkler system in his cell and flooding his unit, creating a disturbance, and threatening and spitting on staff members. Dr. Schacht opined that there was no indication that the defendant was a follower. He also testified that there was no proven genetic relationship to criminal behavior, although a family history of mental illness is a risk factor. In Dr. Schacht's opinion, there was no connection between the defendant's background and the facts of this case.
At the conclusion of the penalty phase, the jury found the existence of three aggravating circumstances: (1) that the defendant was previously convicted of one or more felonies other than the present charge, the statutory elements of which involve the use of violence to the person; (2) that the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another; and (3) that the murder was knowingly committed, solicited, directed, or aided by the defendant while the defendant had a substantial role in committing or attempting to commit robbery or kidnapping. Tenn. Code Ann. § 39-13-204(i)(2), (6), (7) (1996). The jury also found that these aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt and imposed sentences of death for each of the murder convictions.

State v. Berry, 141 S.W.3d 549, 556-58.

         IV. Standard of Review

          The petition in this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). The AEDPA was enacted “to reduce delays in the execution of state and federal criminal sentences . . . and to further the principles of comity, finality, and federalism.” Woodford v. Garceau, 538 U.S. 202, 206 (2003) (internal citations and quotation marks omitted). As the Supreme Court explained, the AEDPA “recognizes a foundational principle of our federal system: State courts are adequate forums for the vindication of federal rights.” Burt v. Titlow, 571 U.S. 12, 19 (2013). The AEDPA, therefore, “erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.” Id.

         One of the AEDPA's most significant limitations on the federal courts' authority to issue writs of habeas corpus is found in 28 U.S .C. § 2254(d). Under the AEDPA, the court may grant a writ of habeas corpus on a claim that was adjudicated on the merits in state court if that adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 405 (2000).

         The state court's factual findings are presumed to be correct and they can be contravened only if the petitioner can show by clear and convincing evidence that the state court's factual findings were erroneous. 28 U.S.C. § 2254(e)(1). As the Supreme Court has advised, “[t]he question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). Review under § 2254(d) (1) “is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 182 (2011).

         “Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, 28 U.S.C. § 2254(b), thereby giving the State the ‘opportunity to pass upon and correct' alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citations omitted). “To provide the State with the necessary ‘opportunity,' the prisoner must ‘fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim.” Id. (citation omitted); Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (the substance of the claim must have been presented as a federal constitutional claim). This rule has been interpreted by the Supreme Court as one of total exhaustion. Rose v. Lundy, 455 U.S. 509 (1982). Thus, each and every claim set forth in the federal habeas corpus petition must have been presented to the state appellate court. See Picard v. Connor, 404 U.S. 270, 275 (1971); see also Pillette v. Foltz, 824 F.2d 494, 496 (6th Cir. 1987) (exhaustion “generally entails fairly presenting the legal and factual substance of every claim to all levels of state court review”).

         Claims which are not exhausted are procedurally defaulted and “ordinarily may not be considered by a federal court on habeas review.” Alley v. Bell, 307 F.3d 380, 388 (6th Cir. 2002). “In order to gain consideration of a claim that is procedurally defaulted, a petitioner must demonstrate cause and prejudice for the failure, or that a miscarriage of justice will result from the lack of review.” Id. at 386. The burden of showing cause and prejudice to excuse defaulted claims is on the habeas petitioner. Lucas v. O'Dea, 179 F.3d 412, 418 (6th Cir. 1999) (citing Coleman v. Thompson, 501 U.S. 722, 754 (1991)).

         A petitioner may establish cause by “show[ing] that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Objective impediments include an unavailable claim or interference by officials that made compliance impracticable. Id. Constitutionally ineffective assistance of trial or appellate counsel may constitute cause. Murray, 477 U.S. at 488-89. Generally, however, if a petitioner asserts ineffective assistance of counsel as cause for a default, that ineffective assistance claim must itself have been presented to the state courts as an independent claim before it may be used to establish cause. Id. If the ineffective assistance claim is not presented to the state courts in the manner that state law requires, that claim is itself procedurally defaulted and can only be used as cause for the underlying defaulted claim if the petitioner demonstrates cause and prejudice with respect to the ineffective assistance claim. Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000).

         Petitioners in Tennessee also can establish “cause” to excuse the procedural default of a substantial claim of ineffective assistance by demonstrating the ineffective assistance of post-conviction counsel in failing to raise the claim in initial review post-conviction proceedings. See Martinez v. Ryan, 566 U.S. 1, 5-6 (2012) (creating an exception to Coleman where state law prohibits ineffective assistance claims on direct appeal); Trevino v. Thaler, 569 U.S. 413, 429 (2013) (extending Martinez to states with procedural frameworks that make meaningful opportunity to raise ineffective assistance claim on direct ap peal unlikely); Sutton v. Carpenter, 745 F.3d 787, 792 (6th Cir. 2014) (holding that Martinez and Trevino apply in Tennessee). The Supreme Court's creation in Martinez of a narrow exception to the procedural default bar stemmed from the recognition, “as an equitable matter, that the initial-review collateral proceeding, if undertaken without counsel or with ineffective counsel, may not have been sufficient to ensure that proper consideration was given to a substantial claim.” Martinez, 566 U.S. at 13. In other words, Martinez requires that the ineffective assistance of post-conviction counsel occur during the “initial-review collateral proceeding, ” and that “the underlying ineffective-assistance-of-trial-counsel claim [be] a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.” See id. at 13-15. Importantly, Martinez did not dispense with the “actual prejudice” prong of the standard for overcoming procedural default first articulated by the Supreme Court in Coleman.

         To establish prejudice, a petitioner must demonstrate that the constitutional error “worked to his actual and substantial disadvantage.” Perkins v. LeCureux, 58 F.3d 214, 219 (6th Cir. 1995) (quoting United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original)). “When a petitioner fails to establish cause to excuse a procedural default, a court does not need to address the issue of prejudice.” Simpson v. Jones, 238 F.3d 399, 409 (6th Cir. 2000) (citations omitted).

         Because the cause and prejudice standard is not a perfect safeguard against fundamental miscarriages of justice, the Supreme Court also has recognized a narrow exception to the cause requirement where a constitutional violation has “probably resulted” in the conviction of one who is “actually innocent” of the substantive offense. Dretke v. Haley, 541 U.S. 386, 392 (citing Murray, 477 U.S. at 496).

         V. Analysis

         With these principles in mind, the Court will turn to the examination of the claims raised in Berry's petition for habeas relief.

         A. Double Jeopardy Claim

         Petitioner alleges that his resentencing after the post-conviction court vacated his original death sentence violated the Double Jeopardy Clause. (Doc. No. 1 at 8-9). The Double Jeopardy Clause serves the function of preventing both successive punishments and successive prosecutions. United States v. Ursery, 518 U.S. 267, 273 (1996). The protection against multiple punishments prohibits the government from “punishing twice or attempting a second time to punish criminally for the same offense.” Witte v. United States, 515 U.S. 389, 396 (1995) (quoting Helvering v. Mitchell, 303 U.S. 391, 399 (1938)).

         Respondent contends that this claim is procedurally defaulted because Petitioner did not raise it in the state court during the post-conviction or resentencing proceedings. (Doc. No. 35 at 14). In order to qualify as exhausted, a claim must have been presented to the state's highest court, Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990), and must have been presented in a form which allows the state court a full and fair opportunity to rule on the claim. Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 302-303 (1984); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). A prisoner exhausts a claim by “fairly present[ing]” it to the appropriate trial and appellate courts. Baldwin v. Reese, 541 U.S. 27, 29 (2004). “A petitioner can take four actions in his brief which are significant to the determination as to whether a claim has been fairly presented: (1) reliance upon federal cases employing constitutional analysis; (2) reliance upon state cases employing federal constitutional analysis; (3) phrasing the claim in terms of constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional right; or (4) alleging facts well within the mainstream of constitutional law.” Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2003) (internal quotation marks omitted), abrogated on other grounds by English v. Berghuis, 529 Fed. App'x 734 (6th Cir. 2013). “General allegations of the denial of rights to a ‘fair trial' and ‘due process' do not ‘fairly present' claims that specific constitutional rights were violated.” McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000) (citation omitted).

         Petitioner did not raise a Double Jeopardy claim at trial, on direct appeal, in his petition for post-conviction relief, or on appeal of the denial of his petition for post-conviction relief. Thus, he has never presented the claim to any state court, and the time for raising the claim in the state courts has passed. See Tenn. Code Ann. § 40-30-106(g); Tenn. Code Ann. §§ 40-30-102(a), (c) (setting one-year limitations period for post-conviction relief). Petitioner is now barred by the post-conviction statute of limitations and restrictions on successive state petitions from raising the claim at this time.

         Because Petitioner has never fully and fairly presented a Double Jeopardy claim to the state courts, and a state procedural rule prohibits the state court from extending further consideration to the claim, the claim is deemed exhausted (since there is no “available” state remedy) but procedurally defaulted from federal habeas review. See Coleman, 501 U.S. at 752-53. Contrary to Respondent's assertion (Doc. No. 35 at 14), Petitioner acknowledges his default of this claim and states that he “did not raise this issue due to ineffective assistance of counsel and the local Trail [sic] Court would not let me, the accused to present my legal interest because I was represented by counsel that felt the Double Jeopardy issue had no merit.” (Doc. No. 1 at 9). The Court understands Petitioner's argument to be that trial counsel should have raised the Double Jeopardy ...


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