United States District Court, E.D. Tennessee
KEVIN R. LEWIS, Petitioner,
TAMMY FORD, Respondent.
A. VARLAN, UNITED STATES DISTRICT JUDGE
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.
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].
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].
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).
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 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. §
seeks relief under § 2254 based on the following claims
that the Court will address in turn:
prosecution’s display of his booking photographs to
jurors during closing argument was reversible error;
evidence was insufficient to support his conviction for
aggravated sexual battery;
trial counsel was ineffective for failing to argue to the
jury that the evidence was insufficient to support a
conviction for aggravated sexual battery;
trial counsel was ineffective for failing to thoroughly
counsel at trial and on appeal was ineffective for failing to
argue that the evidence was insufficient to support a
conviction for aggravated sexual battery; and
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;
Display of Booking Photographs
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].
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.”).
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)).
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).
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.
Sufficiency of the Evidence
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 ...