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Lewis v. Ford

United States District Court, E.D. Tennessee

September 25, 2019

KEVIN R. LEWIS, Petitioner,
v.
TAMMY FORD, Respondent.

          MEMORANDUM OPINION

          THOMAS A. VARLAN, UNITED STATES DISTRICT JUDGE

         This is a pro se prisoner’s petition for a writ of habeas corpus under 28 U.S.C. § 2254 [Doc. 1]. Respondent filed an answer [Doc. 7] and the state record [Doc. 6], and Petitioner replied [Doc. 10]. After reviewing the relevant 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 Rules Governing § 2254 Cases, Rule 8(a); Schirro v. Landrigan, 550 U.S. 465, 474 (2007), the petition [Doc. 1] will be DENIED, and this action will be DISMISSED.

         I. PROCEDURAL HISTORY

         On February 3, 2010, a Hamilton County jury found Petitioner guilty of aggravated assault, aggravated kidnapping, and aggravated sexual battery [State Court Record Attachment 1]. These convictions arose out of an incident in November 2008 in which Petitioner offered to drive a female home from a nightclub but instead stopped his car in a parking lot, jerked the victim’s head down by her ponytail, poked her with a knife, held her down on the hood of the car, pulled her pants and underwear down, unbuckled and unzipped his own pants, and urinated on her. State v. Lewis, No. E2010-012670-CCA-R3-CD, 2011 WL 3243685, at *1 (Tenn. Crim. App. July 29, 2011), perm. app. denied, (Tenn. Oct. 27, 2011). Petitioner appealed his convictions and sentence to the Tennessee Court of Criminal Appeals (“TCCA”), which affirmed both. Id. at *4. On October 27, 2011, the Tennessee Supreme Court dismissed Petitioner’s application for discretionary review as untimely [State Court Record Attachment 13].

         Petitioner next filed a petition for post-conviction relief [State Court Record Attachment 16 p. 2–20, 29–37, 47–48]. On October 31, 2013, after an evidentiary hearing, the post-conviction court granted Petitioner a delayed appeal to the Supreme Court for discretionary review of the TCCA’s affirmance of his conviction [Id. at 46], and on April 9, 2014, the Tennessee Supreme Court denied Petitioner’s application [State Court Record Attachment 15].

         Subsequently, on October 10, 2014, the post-conviction court granted Petitioner post-conviction relief for his claim that counsel was ineffective for not challenging the sufficiency of the evidence supporting his aggravated kidnapping charge and therefore vacated this conviction and dismissed this charge; the court denied Petitioner’s other claims for post-conviction relief [State Court Record Attachment 16 p. 49–69]. The TCCA reversed the post-conviction court’s dismissal of the aggravated kidnapping charge but otherwise affirmed the post-conviction court’s opinion. Lewis v. State, No. E2014-02070-CCA-R3-PC, 2015 WL 5175664 (Tenn. Crim. App. Sept. 3, 2015), perm. app. denied, (Tenn. Dec. 11, 2015).[1]

         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 demanding. 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)). 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 the following claims that the Court will address in turn:

         (1) the prosecution’s display of his booking photographs to jurors during closing argument was reversible error;

         (2) the evidence was insufficient to support his conviction for aggravated sexual battery;

         (3) trial counsel was ineffective for failing to argue to the jury that the evidence was insufficient to support a conviction for aggravated sexual battery;

         (4) trial counsel was ineffective for failing to thoroughly impeach witnesses;

         (5) his counsel at trial and on appeal[2] was ineffective for failing to argue that the evidence was insufficient to support a conviction for aggravated sexual battery;[3] and

         (6) his counsel at trial and on appeal was ineffective for failing to argue that Petitioner’s aggravated assault conviction violated double jeopardy [Doc. 1 p. 5–10; Doc. 1-1; Doc. 1-2].

         A. Display of Booking Photographs

         First, Petitioner seeks relief under § 2254 based on his assertion that “reversible error” occurred in his trial when the prosecutor displayed Petitioner’s booking photographs, which were printed on the back of his notes, to the jury during his closing argument [Doc. 1 p. 5; Doc. 1-1 p. 1; State Court Record Attachment 9 p. 5–6]. In Petitioner’s appeal to the TCCA raising this claim, he relied on and cited Tennessee law but did not assert that the display of these photographs violated his federal constitutional rights [State Court Record Attachment 9].

         First, to the extent Petitioner seeks relief for this claim on the ground that the TCCA improperly applied state law in affirming the trial court’s holding that Petitioner was not entitled to relief based on this display, any such claim is not cognizable under § 2254. Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-court questions.”).

         Further, even if the Court liberally construes the § 2254 petition to claim that this display violated Petitioner’s constitutional rights, Petitioner procedurally defaulted any such claim. Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his available state court remedies. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires a petitioner to “fairly present” federal claims so that state courts have a “fair opportunity” to apply controlling legal principles to the facts bearing upon a petitioner’s constitutional claim. See Picard v. Connor, 404 U.S. 270, 275–77 (1971), cited in Duncan v. Henry, 513 U.S. 364, 365 (1995); Anderson v. Harless, 459 U.S. 4, 6 (1982). “Federal courts lack jurisdiction to consider a habeas petition claim that was not fairly presented to the state courts.” Blackmon v. Booker, 394 F.3d 399, 400 (6th Cir. 2004) (citing Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2003)).

         To fairly present a claim, it is not enough that all the facts necessary to support a federal claim were before the state court or that a somewhat similar state law claim was made. See Anderson, 459 U.S. at 6; Harris v. Rees, 794 F.2d 1168, 1174 (6th Cir. 1986); see also Duncan, 513 U.S. at 366 (mere similarity of claims is insufficient to exhaust). “If state courts are to be given the opportunity to correct alleged violations of prisoners’ federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.” Duncan, 513 U.S. at 365–66. Further, a petitioner who fails to fairly raise his federal claim in the state courts and cannot sustain his claim in federal court due to a procedural rule has committed a procedural default. Procedural default 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 did not fairly present a claim to the TCCA that the prosecutor violated his constitutional rights by displaying his booking photographs during his closing argument. As such, Petitioner procedurally defaulted this claim. While Petitioner has attempted to overcome his procedural default of other claims in his petition [Doc. 1 p. 11], he has not set forth any assertion of cause to excuse his default of this claim, nor has he shown that actual prejudice resulted from this display. Accordingly, the Court will not address the merits of this claim.

         B. Sufficiency of the Evidence

         Petitioner also alleges that the evidence was insufficient to support his conviction for aggravated sexual battery [Doc. 1-2 p. 4]. Petitioner did not raise this claim to the TCCA in his direct appeal of his conviction [State Court Record Attachment 9] or in his appeal of the denial of his post-conviction petition [State Court Record Attachment 20]. As such, Respondent asserts that Petitioner procedurally defaulted this claim [Doc. 7 p. 24]. Petitioner, however, asserts that his procedural default of this claim and ...


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