United States District Court, M.D. Tennessee, Nashville Division
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
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.
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).
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
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
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.
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).
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).
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.
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.
23, 2017,  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.
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).
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).
Summary of the Evidence
Tennessee Court of Criminal Appeals summarized the proof
adduced during the guilt phase of Petitioner's jury trial
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
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
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
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
State v. Berry, 141 S.W.3d 549, 556-58.
Standard of Review
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.”
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
(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;
(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).
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).
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”).
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)).
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).
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
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)
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).
these principles in mind, the Court will turn to the
examination of the claims raised in Berry's petition for
Double Jeopardy Claim
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)).
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
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.
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 ...