United States District Court, E.D. Tennessee, Knoxville
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 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.
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.
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).
STANDARD OF REVIEW
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
(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)(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. §
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.
Ineffective Assistance of Post-Conviction Counsel
as set forth above, Petitioner seeks relief under § 2254
based on claims for ineffective assistance of his
post-conviction counsel [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.
Procedurally Defaulted Claims
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)
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
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
3. The trial court erred in excluding expert testimony
regarding Petitioner's diminished capacity from the