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Mills v. Genovese

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

September 20, 2019

KEVIN GENOVESE, Warden, Respondent.

          H. Bruce Guyton Magistrate Judge.



         Petitioner Michael Deon Mills, a Tennessee inmate proceeding pro se, has filed a federal habeas petition pursuant to 28 U.S.C. § 2254 challenging his Tennessee judgments of conviction for two counts of especially aggravated kidnapping, one count of especially aggravated robbery, and one count of aggravated burglary. Having considered the submissions of the parties, the state-court record, and the law applicable to Petitioner’s claims, the Court finds that the petition should be denied.


         At trial, evidence was introduced that Petitioner and several others forced their way into a home in Knox County, Tennessee, and beat the occupants using a baseball bat and the butt of a shotgun while committing a robbery. (See, e.g., Doc. 14-2, at 64–107; Doc. 14-3, at 32–58; Doc. 14-4, at 15–29.) An emergency call was placed during the attack, and police arrived while Petitioner and another assailant were still in the home. (See, e.g., Doc. 14-4, at 22–24, 30–35, 38.) Petitioner was discovered by police “sandwiched in between the bed and the wall in the bedroom” with a loaded shotgun lying on the bed. (Id. at 38–39.)

         One of the assailants testified against Petitioner at trial. (See, e.g., Doc. 14-3, at 71–98.) During closing arguments, the State argued that “you heard from the one – the only one that has accepted responsibility in this case – [a co-defendant].” (Doc. 14-5, at 54.) During the State’s rebuttal argument, the prosecutor stated, “At the end of the day what [the co-defendant] told you is unrefuted. Absolutely unrefuted.” (Id. at 68.) Petitioner’s trial counsel did not object to either of these statements. (Id. at 54, 68.)

         A Knox County jury convicted Petitioner of two counts of especially aggravated kidnapping, one count of especially aggravated robbery, and one count of aggravated burglary. (Doc. 14-6, at 124.) He was sentenced to an effective sentence of twenty-five years. (Doc. 14-1, at 55–58.) The convictions and sentence were affirmed on appeal. State v. Mills, E2009-01708-CCA-R3-CD, 2011 WL 13167859, at *4 (Tenn. Crim. App. April 21, 2011), perm. app. denied (Tenn. July 14, 2011) (“Mills I”). The Tennessee Supreme Court denied discretionary review. (Doc. 14-15.)

         Through post-conviction counsel, Petitioner filed a petition for post-conviction relief and several amendments thereto. (Doc. 14-16, at 12–20.) At the post-conviction evidentiary hearing, Petitioner testified that he hired trial counsel after she convinced him that the plea offer of twelve years at thirty percent to serve that his first attorney obtained for him was not favorable enough. (Doc. 14-17, at 26–28.) He stated that he had never intended to go to trial, and that his attorney never discussed with him what penalties he might face if he went to trial. (Id. at 28–29.) Petitioner maintained that when he learned that he would face trial, he asked his attorney to call the prosecutor and to secure his plea bargain for a twelve-year sentence, but she advised him that the prosecutor declined to renew the offer. (Id. at 33–34.) He otherwise claimed that counsel advised him that the most severe penalty he would face if convicted would be fifteen years at thirty percent to serve, because everything except the robbery case would get dismissed at trial. (Id. at 34–35.)

         Trial counsel testified that she began representing Petitioner following the termination of his first retained counsel. (Id. at 62–64.) She stated that Petitioner adamantly refused to plead guilty and that she “wasn’t even authorized to do any negotiations for [Petitioner] because he said he was not going to plea.” (Id. at 64, 69–70, 73.) She testified that Petitioner’s father “was trying to get [Petitioner] to consider” taking a plea but that Petitioner “was adamant that he did not want to plea[d], he wanted to go to trial.” (Id. at 69.) Trial counsel stated she researched Petitioner’s sentencing exposure on each charge and advised him that he could receive a sentence between fifteen and twenty-five years to be served at 100 percent for the especially aggravated robbery charge. (Id. at 66–67, 69.) She testified that she “never promised [Petitioner] anything.” (Id. at 68.)

         In a written order denying relief, the post-conviction court credited trial counsel’s testimony and found Petitioner had failed to prove trial counsel’s deficiency. (Doc. 14-16, at 30– 35.) The Tennessee Court of Criminal Appeals (“TCCA”) affirmed the denial of relief. Mills v. State, E2016-01544-CCA-R3-PC, 2016 WL 6840484, at *4 (Tenn. Crim. App. Nov. 21, 2016), perm. app. denied (Tenn. Mar. 8, 2017) (“Mills II”). The Tennessee Supreme Court denied discretionary review. (Doc. 14-25.)

         Thereafter, Petitioner filed the instant petition for writ of habeas corpus, as amended, raising the following claims: (1) the prosecution improperly commented on Petitioner’s failure to testify at trial; (2) trial counsel rendered ineffective assistance in misadvising Petitioner of his sentencing exposure; (3) trial counsel rendered ineffective assistance in failing to object to improper comments made by the prosecutor at sentencing; and (4) post-conviction counsel rendered ineffective assistance. (Doc. 5.) Respondent filed an answer on May 18, 2018. (Doc. 15.) This matter is now ripe for the Court’s review.


         The Court’s review of the instant petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which prevents the grant of federal habeas relief on any claim adjudicated on the merits in a State court unless that adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established United States Supreme Court precedent; or (2) resulted in a decision based on an unreasonable determination of facts in light of the evidence presented. See 28 U.S.C. § 2254(d)(1), (2); Schriro v. Landrigan, 550 U.S. 465, 473 (2007).

         Federal habeas relief may be granted under the “contrary to” clause when the state court (1) arrives at a conclusion opposite that reached by the Supreme Court on a question of law; or (2) decides a case differently than the Supreme Court on a set of materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 405–06 (2000). Under the “unreasonable application” clause, a federal court may grant relief when the state court applies the correct legal principle to the facts in an unreasonable manner. See id. at 407–08; Brown v. Payton, 544 U.S. 133, 141 (2005). Whether a decision is “unreasonable” is an objective inquiry; it does not turn on whether the decision is merely incorrect. See Schriro, 550 U.S. at 473 (“The 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.”); Williams, 529 U.S. at 410–11. This standard will allow relief on a federal claim decided on its merits in State court only where the petitioner demonstrates that the State ruling “was so lacking in justification that there was an error understood and comprehended in existing law beyond any possibility for ...

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