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Mann v. Cook

United States District Court, E.D. Tennessee, Knoxville

September 13, 2019

ANDREW MANN, Petitioner,
v.
DOUG COOK, Respondent.

          MEMORANDUM OPINION

         This is a pro se prisoner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 [Doc. 2]. Respondent filed an answer and the state record [Docs. 8 and 9]. Petitioner filed a reply [Doc. 12[1] and a motion for status [Doc. 18]. After reviewing the filings and the state court record, the Court finds that Petitioner is not entitled to relief under § 2254. Accordingly, no evidentiary hearing is warranted, see Rule 8(a) of the Rules Governing § 2254 Cases and Schirro v. Landrigan, 550 U.S. 465, 474 (2007) and Petitioner's motion for status [Id.] will be GRANTED to the extent that his § 2254 petition [Doc. 2] will be DENIED and this action will be DISMISSED.

         I. PROCEDURAL HISTORY

         On December 5, 2008, a Knox County jury found Petitioner guilty of two counts of first-degree murder [State Court Record, Attachment 2 p. 147-48]. These convictions arose out of an incident on June 29, 2007, in which Petitioner shot and killed Terrance and Alisa McGhee, the parents of his girlfriend, Amanda McGhee. State v. Mann, No. E2010-00601-CCA-R3-CD, 2012 WL184157, at *1 (Tenn. Crim. App.), perm. app. denied (Tenn. June 20, 2012). Petitioner appealed his convictions and sentence to the Tennessee Court of Criminal Appeals (“TCCA”), and the TCCA affirmed them. Id. at *20.

         Petitioner next filed a petition for post-conviction relief [State Court Record Attachment 25 p. 2121-29, 2140-45, 2149-60]. After an evidentiary hearing, the post-conviction court denied relief, and the TCCA affirmed this denial. Mann v. State, No. E2014-01524-CCA-R3-CD, 2015 WL 3643473, at *3 (Tenn. Crim. App. June 12, 2015), perm. app. denied (Tenn. Aug. 14, 2015).

         II. STANDARD OF REVIEW

         Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), codified in 28 U.S.C. § 2254, et. seq., a district court may not grant habeas corpus relief for a claim that a state court adjudicated on the merits unless the state court's adjudication of the claim:

(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)(1)-(2). The § 2254(d) standard is hard to satisfy. Montgomery v. Bobby, 654 F.3d 668, 676 (6th Cir. 2011) (noting that “§ 2254(d), as amended by AEDPA, is a purposefully demanding standard . . . ‘because it was meant to be'”) (quoting Harrington v. Richter, 131 S.Ct. 770, 786 (2011)). Further, where the record supports the state court's findings of fact, those findings are entitled to a presumption of correctness which a petitioner may rebut only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

         III. ANALYSIS

         Petitioner seeks relief under § 2254 based on claims of ineffective assistance of trial, appellate, and post-conviction counsel, as well as claims of trial judge error, bias, and incompetence [Doc. 2-1 p. 4-6; Doc. 12]. As set forth more fully below, however, Petitioner's claims for ineffective assistance of post-conviction counsel are not cognizable under § 2254, and Petitioner procedurally defaulted all other claims except his claims that trial counsel was ineffective for advising him to testify and that the trial court erred in various rulings regarding the exclusion and admission of certain evidence at trial. Accordingly, the Court will address Petitioner's claims for ineffective assistance of post-conviction counsel and his procedurally default of other claims before addressing the § 2254 claims that are properly before the Court.

         A. Ineffective Assistance of Post-Conviction Counsel Claims

         First, as set forth above, Petitioner seeks relief under § 2254 based on claims for ineffective assistance of his post-conviction counsel[2] [Doc. 2-1 p. 6]. Criminal defendants, however, have no right to counsel in state post-conviction proceedings and thus have no constitutional cause of action for ineffective assistance of counsel in those proceedings. Coleman v. Thompson, 501 U.S. 722, 752 (1991); 28 U.S.C. 2254(i) (providing that the “ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief” under § 2254). Accordingly, Petitioner's claims for ineffective assistance of post-conviction counsel are not cognizable under § 2254 and they will be DISMISSED.

         B. Procedurally Defaulted Claims

         Petitioner also seeks relief under § 2254 based on a number of claims that he did not raise in his appeals to the TCCA [compare Doc. 2-1 p. 4-6 and Doc. 12 with State Court Record Attachment 19 and State Court Record Attachment 27]. Before a district court may grant habeas relief to a state prisoner, however, the prisoner must exhaust all of his available state court remedies. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Specifically, the prisoner must have fairly presented his federal claims to all levels of the state appellate system, including the state's highest court. Duncan, 513 U.S. at 365-66; Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). A petitioner who fails to raise his federal claim in the state courts and cannot do so now due to a procedural rule has committed a procedural default that forecloses federal habeas review unless the petitioner shows cause to excuse his failure to comply with the procedural rule and actual prejudice from the constitutional violation. Coleman v. Thompson, 501 U.S. 722, 750 (1991)

         Petitioner procedurally defaulted all claims that he did not fully and fairly raise in his appeals to the TCCA. See Tenn. Code Ann. § 40-30-102(a) (setting forth Tennessee's one-year limitation period for post-conviction petitions) and § 40-30-102(c) (setting forth Tennessee's “one petition” rule for petitions for post-conviction relief). As such, the Court will only address the merits of the claims that Petitioner raised in his appeals to the TCCA and raises in his § 2254 petition, including the following:

1. Trial counsel was ineffective for coercing Petitioner to testify at trial [Doc. 2-1 p. 4; State Court Record Attachment 27 p. 2259-60];
2. The trial court erred in excluding a 2003 report of abuse on the part of her father by Amanda McGhee from the evidence at trial [Doc. 2-1 p. 4-5; State Court Record Attachment 19 p. 1725-30];
3. The trial court erred in excluding expert testimony regarding Petitioner's diminished capacity from the ...

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