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Miller v. Genovese

United States District Court, W.D. Tennessee, Eastern Division

September 26, 2019

DWIGHT MILLER, Petitioner,
v.
KEVIN GENOVESE, Respondent.

          ORDER DENYING MOTION FOR EVIDENTIARY HEARING, DENYING § 2254 PETITION, GRANTING A LIMITED CERTIFICATE OF APPEALABILITY, AND CERTIFYING THAT A LIMITED APPEAL WOULD BE TAKEN IN GOOD FAITH

          S. THOMAS ANDERSON, CHIEF UNITED STATES DISTRICT JUDGE.

         Petitioner Dwight Miller has filed a pro se habeas corpus petition (the “Petition”), pursuant to 28 U.S.C. § 2254 (ECF No. 1), as well as a motion for an evidentiary hearing (ECF No. 43). For the following reasons, the motion and the Petition are DENIED. Petitioner will, however, be GRANTED a limited certificate of appealability and leave to appeal in forma pauperis.

         BACKGROUND

         The following background summary is drawn from the state court record (ECF No. 24) and the decisions in Miller’s first direct appeal (“Miller I”), direct appeal after retrial (“Miller II”), delayed direct appeal after retrial (“Miller III”), and appeal from denial of post-conviction relief (“Miller IV”). See State v. Miller, No. 02C01-9708-CC-00300, 1998 WL 902592, at *1 (Tenn. Crim. App. Dec. 29, 1998) (Miller I); State v. Miller, No. W2001-03095-CCA-R3-CD, 2004 WL 115374, at *1 (Tenn. Crim. App. Jan. 14, 2004), perm. appeal denied (Tenn. May 10, 2004) (Miller II); State v. Miller, No. W2011-00447-CCA-R3-CD, 2013 WL 324401, at *1 (Tenn. Crim. App. Jan. 28, 2013), perm. appeal denied (Tenn. Jan. 28, 2013) (Miller III); Miller v. State, No. W2014-02093-CCA-R3-PC, 2015 WL 3881597, at *1 (Tenn. Crim. App. June 24, 2015), perm. appeal denied (Tenn. Oct. 16, 2015) (Miller IV).

         I. First Trial and Direct Appeal

         In July 1995, a Haywood County, Tennessee, grand jury returned an indictment charging Miller with the first degree murder of Donald Rice. (ECF No. 24-1 at 4-5.)[1] At Petitioner’s jury trial, the “[e]yewitness testimony of Clement Harris, who was sitting outside a housing project [on Fairground Road in Brownsville] at the time of the crime, established the defendant as the perpetrator.” Miller I, 1998 WL 902592, at *1. He testified that sometime between one and two o’clock in the morning of April 20, 1995, he observed “Rice and the defendant . . . sitting in their cars, which were parked driver’s window to driver’s window, ” and noticed that there was someone in the car with Miller. Id.; (ECF No. 24-3 at 53, 60, 61.) He knew Miller from high school and Rice “from the streets.” (ECF No. 24-3 at 59.) The men engaged in a short conversation, after which Rice began backing away. (Id. at 60.) Miller said “Come here Donald. Come here, Donald, ” to which Rice replied “No. You’re bullshitting, Dwight.” (Id. at 60.) Harris testified that he recognized Miller’s voice. (Id. at 64.) When Rice moved toward the defendant’s car, Harris saw gunfire from the driver’s window where Miller was seated. (Id. at 60.)

         Harris observed that Miller exited his car, moved Rice’s body over, and drove away. (Id.) The unknown person drove away in Miller’s car. (Id. at 60, 65.) As both cars drove by Harris, who at that point was a couple of car lengths away, Harris could see Miller and the unidentified individual clearly. (Id. at 65.) Harris stated that “after they drove off, ” he “went over to a guy that stayed across the street-Mose Com[]age’s house and told him about it.” (Id. at 66.)

         Harris further testified that he had seen Miller and the other individual earlier that day at “the Projects on Fairground . . . and asked [Miller] for a cigarette.” (Id. at 67.) Harris observed “a shot gun shell” in Miller’s car “when [Miller] pulled the armrest up and gave [Harris] a cigarette.” (Id.)

         On cross-examination, Harris admitted he was a cocaine user and had felony convictions for drugs, robbery, and forgery. (Id. at 72.) The witness stated that a man named James Priddy had taken him to a store shortly before one o’clock in the morning on April 20th, 1995. (Id. at 76.) He remembered talking to a resident of the apartments named Mary Taylor shortly after the murder, and recalled that she told him that she had heard gunfire. (Id. at 78.) He acknowledged having smoked crack cocaine around the time of the murder, but insisted he was in his right “senses” at the time of killing. (Id. at 83.)

         Billy Blackwell, an investigator with the Haywood County Sheriff’s Department, testified that after receiving a tip he found Rice’s body in a ditch with a gunshot wound to his head. (Id. at 31-33.) Investigator Shawn Williams from the Brownsville Police Department testified that he located Rice’s car, which had a maroon exterior and contained blood and brain matter within the interior compartment. (Id. at 42-44.) “The medical examiner testified that Mr. Rice died as a result of a shotgun wound to the head.” Miller I, 1998 WL 902592, at *1.

         Lieutenant Johnny Blackburn of the Brownsville Police Department testified that he questioned Miller about the murder, but Miller denied any involvement. (ECF No. 24-3 at 95.) Miller told Blackburn that, on April 19, 1995, he “made it home [from work] at 4:00[, ] . . . painted his mother’s den[, ] . . . left home about 7:30[, ] . . . went to the Projects in Stanton[, ] . . . ran across some friends[, ] . . . [and] left the Projects at 12:20 [and] went home.” (Id.) Blackburn further testified that, with the defendant’s permission, he retrieved a 12-gauge shotgun, as well as spent shotgun shells, from Miller’s bedroom. (Id. at 100-03.) He stated that the shotgun smelled as if it had been “recently” fired. (Id. at 99.)

         The prosecution sought to introduce the preliminary hearing testimony of Nina Champion over defense counsel’s objection that the State had not diligently tried to find her to testify in person. (ECF No. 24-5 at 25.) Blackburn was recalled to testify about his efforts to locate Champion. (Id. at 23-25.) He reported that, over the course of a year, he asked Champion’s mother, Sam Ethel Williams, several times where her daughter was. (Id. at 23-24.) She always told him that she only knew that her daughter was in Nashville. (Id. at 24.) Because Williams told him that her daughter might be in trouble with the law, Blackburn contacted the Metro jail to see if she was in custody there, but she was not. (Id. at 23-24.) During her own trial testimony, Williams insisted she would have given Blackburn her daughter’s phone number if he had asked. (Id. at 19.) However, when asked by the trial judge what the phone number was, she said she did not know. (Id. at 22.) Finding that Champion was unavailable to testify in person, the judge admitted her preliminary hearing testimony. (Id. at 25; ECF No. 24-3 at 117-30.)

         Champion testified at the preliminary hearing that she had seen Miller “all evening” in Brownsville in the hours before the murder (id. at 124), and had observed “a shotgun in the trunk of [his] car.” Miller I, 1998 WL 902592, at *1. When asked how she was able to see in the trunk, Champion explained that the trunk lid was open at the time and she peeked in because she was “nosey.” (ECF No. 24-3 at 128.)

         Sheila Bernil testified that the defendant came to her house, where she lived with Kathy Blackwell, in the early morning hours of April 20, 1995, and that he “was very insistent that he be allowed inside.” Miller I, at *2. She “did not allow him entry.” Id.

         Blackwell, who “testified first as a state’s witness[, ] . . . essentially claimed total memory loss of pertinent events as she had previously described in statements given to the [Tennessee Bureau of Investigation] and a defense investigator.” Id. at *10. The State was “allowed . . . to treat Blackwell as a hostile witness.” Id. “After [she] completed her testimony, the court had the jury removed from the courtroom, then sua sponte advised Blackwell” that he was putting her “into the custody of the Sheriff [to] see if [her] memory gets any better.” Id. He also told her “you go with the Sheriff, and when you feel like that you can remember and you can come back in here and testify truthfully before this jury, you can let me know, ” but “[u]ntil then you can remain in the custody of the Sheriff.” Id.

         Special Agent Bryan Byrd read two signed statements that he had taken from Blackwell in which she stated that,

she saw the defendant and the victim together around 1:00 on the morning of the murder at the location where the murder later took place. Around 2:00 that morning, the defendant and another man came to the house where Blackwell and Sheila Bernil were living. The defendant was angry. Several hours later, Blackwell went to buy crack cocaine from the defendant. He was driving a car like one she had previously seen the victim driving. The defendant told her that the victim was dead.

Id.

         The court later “called Blackwell as its own witness, ” telling her “‘what I want you to do is I want you to tell these ladies and gentlemen in your own words what happened that night, and ... I want you to tell them the truth, whatever that is.’” Id. at *11. The witness then testified that “her memory had improved in the hours since her first appearance on the witness stand because she did not want to go to jail.” Id. She “proceeded to testify in accord with” the statements she had given to the special agent. Id. When her testimony was concluded, defense counsel “moved to strike the testimony [on the ground that] the witness was coerced by her fear of incarceration to testify in accord with her previous statements.” Id. The trial court denied the motion. Id.

         The defense called George Liggons, who testified that he rode with Miller to work on April 19th, the day before the murder. (ECF No. 24-4 at 70.) He was with Miller all day until Miller dropped him off at home in the early evening. (Id. at 70, 73-74.) He testified that, when Miller picked him up for work that morning, he put his tools into the trunk of Miller’s car. (Id. at 74.) He saw no shotgun in the trunk, and did not see shotgun shells in the backseat. (Id. at 74-75.)

         Defendant’s mother, Lucille Miller, testified that her son painted a room in her house on April 19th. (Id. at 91.) She stated that he had come in that night later in the evening, but she was unable to give an exact time of when that occurred. (Id. at 94.) Travis Boyd testified that he was with Miller in Stanton on April 19, 1995, from about 4:00 p.m. until approximately 10 p.m.. (Id. at 110.)

         James Priddy testified that he had no recollection of taking Harris to a store in the late hours of April 19th. (Id. at 116.) Mary Louis Taylor testified that she did not have a conversation with Harris in the early morning of April 20th, but she did recall that she may have heard a loud noise similar to a gunshot. (Id. at 120.)

         The defense also called Champion’s mother, Sam Ethel Williams, to provide testimony to impeach her daughter’s preliminary hearing testimony. (ECF No. 24-5 at 16-18.) A hearing was held outside the presence of the jury to determine whether she had impeachment information. (Id.) Williams testified that at “one time” her daughter told her that “she knew who [killed Donald Rice] and the next time she said she didn’t” know. (Id. at 16.) Williams said she did not know “how long after the murder” the statements were made, or “[h]ow far apart [they] were.” (Id.) The prosecutor objected that the witness’s testimony did not impeach the preliminary hearing testimony because Champion had not testified “that she knew something about the murder.” (Id. at 17.) The judge sustained the objection, and Williams was not allowed to testify before the jury. (Id. at 18.)

         Jesse Jones testified that, around 5:30 or 6:00 in the morning on April 20, 1995, he was walking to work in Brownsville when he observed two cars drive past him. (ECF No. 24-4 at 143.) One of the cars was “maroon looking and the other one light colored with a bunch of design or writing on it.” (Id.) Jones described the driver of the maroon vehicle as having “long jericurls.” (Id.) Later in the day, Jones and others saw the maroon car parked nearby. (Id. at 145.) The car contained “meat and blood and stuff all up in the ceiling.” (Id.) Jones further testified that, “about three day later” when he was with his friend Jimmy Ballard, he noticed the light car “backed up beside a green building.” (Id.) After telling “Jimmy . . . ‘That’s the car I seen that morning over there, ” Ballard “said it belonged to some Taylor boy.” (Id. at 145.)

         After the jury found the defendant guilty, see Miller I, 1998 WL 902592, at *1, the defense filed a motion for a new trial, alleging that the State had withheld information about Bernil:

Sheila Bernil . . . was . . . involved with Barbara Blade in stealing, forging and cashing checks that belonged to another individual. Blade implicated Bernil and was ultimately convicted for the scheme. Bernil was never prosecuted, and the defense argued that no information about Bernil's alleged wrongdoing was ever revealed.

Id. at *4. “The defense further questioned whether some sort of non-prosecution agreement existed between Bernil and the [S]tate, consideration for which was Bernil's testimony in the defendant's murder trial.” Id. The trial court ordered the Tennessee Bureau of Investigation (the “T.B.I.”) to “find out if there [was] sufficient evidence to take [Bernil] to trial” regarding her check forging scheme with Barbara Blade, and “to find out why it was not relayed to the defense counsel when they asked about it.” (ECF No. 24-6 at 14.) The trial court subsequently reviewed the completed T.B.I. report in camera without disclosing its contents to the defense, and determined that no Brady violation had occurred. Miller I, 1998 WL 902592, at *4. During the course of the proceedings, the state “disclosed as ‘pre-trial discovery” “information that Clement Harris and Sheila Bernil were involved in a forgery scheme which [was] apparently unrelated to the one involving Bernil and Blade.” Id. at *6 & n. 10.

         Miller appealed his conviction, arguing that the trial court committed seven reversible errors, and that the “cumulative effect of the alleged errors . . . prejudiced [him] and compromised the judicial process.” Id. at *1. Three of the eight grounds involved the following arguments: (1) “the trial court [erred in] determin[ing] that [Champion] was unavailable and . . . her testimony at the preliminary hearing [could] be admitted as evidence, ” (2) “the trial court erred by placing [Blackwell] in custody as a means of improving her memory after [she] testified she could not remember events about which she had previously given a statement, ” and (3) the State violated Brady v. Maryland, 373 U.S. 83 (1963), when it failed to disclose information to the defense about uncharged crimes against Bernil and possible non-prosecution agreements with Harris and Bernil. Id.

         The appellate court determined that the admission of Champion’s preliminary hearing testimony at trial did not violate Miller’s constitutional right of confrontation. Id. at *8. The record showed that the prosecution made a “good faith effort to secure Nina Champion’s presence.” Id. at *7. Specifically,

Officer Johnny Blackburn testified that he went to the home of Sam Ethel Williams, who is Ms. Champion's mother, two or three times over the course of a year and questioned her about her daughter's whereabouts. Officer Blackburn reasonably followed up on the leads that Ms. Williams provided; however, it would be an understatement to say that she was less than forthcoming with Officer Blackburn. See Roberts, 448 U.S. at 75-76, 100 S.Ct. at 2544 (great improbability that further efforts would yield favorable results removes them from realm of reasonableness required of prosecution). Process had been issued. According to Ms. Williams, someone had been at her home attempting to serve a subpoena on Champion.

Id. The court also found that Champion’s preliminary hearing testimony was reliable, as it fell within the hearsay exception for testimony given at a prior proceeding. Id.

         The appellate court ruled in Miller’s favor, however, regarding his challenge to Blackwell’s testimony. Id. at *12-13. The court found the trial court’s procedure to be prejudicial to the defendant and “to the judicial process, ” and ruled that Miller was entitled to a new trial. Id.

         As to the Brady claim, the appellate court found that it was “unable to address th[at] . . . concern.” Id. at *5. It so concluded because the defense had not had an opportunity to fully argue all elements of a Brady claim due to the trial court’s withholding of portions of the T.B.I report involving the circumstances of Bernil’s crimes. Id. at *5 & n.7. In light of the fact that it was remanding the case for a new trial due to the trial court’s handling of Blackwell, the TCCA found that “the defendant w[ould] receive appropriate relief by the prosecution providing the T.B.I. report during pre-trial discovery in the proceedings which will take place on remand.” Id. at *6.

         II. Second Trial and Direct Appeal

         Miller received a new trial in 2001, Miller II, 2004 WL 115374, at *2, at which he was represented by a new assistant public defender, Miller IV, 2015 WL 3881597, at *2. The State put on substantially the same proof as it had in the first trial, with the exception that it presented the transcript of Kathy Blackwell’s previous testimony because, it asserted, she was unavailable to testify in person. Miller III, 2013 WL 324401, at *8. “[T]he trial court held a jury-out hearing” to determine if Blackwell was indeed unavailable. Id. Four State witnesses, whom counsel cross-examined, testified that they could not locate Blackwell (ECF No. 24-13 at 15-47.) “After the hearing, the trial court concluded that Blackwell was unavailable and that the State would be allowed to read into the record portions of her testimony from the Defendant’s first trial. Miller III, 2013 WL 324401, at *8. “[T]he portions that were read into the record d[id] not include the first trial court’s admonitions to Blackwell; any indication that her testimony was presented at two different times; Blackwell’s explanation that her memory had improved since her first appearance on the stand because she did not want to go to jail; or her testimony about being beaten and her thought that the beating was related to the case.” Id. at *12.

         Officer Billy Blackwell[2] was the first of the prosecution’s witnesses. Id. at *2. During his testimony, “one of the deputies approached the bench and informed the trial court that ‘[t]here’s been a bomb threat to the courthouse.’” Id. at *2. The judge ordered the deputy to have the jurors taken outside and informed that there was a possible emergency. Id. Although the judge had instructed that the jury members be brought to a certain location so that he could talk to them, the jury was inadvertently released. Id. at *3. Defense “counsel suggested an individual voir dire” of the jurors in order to ensure that they did not “have any preconceived notions that maybe [the Defendant was] involved in any way in th[e] episode.” Id. The judge conducted the voir dire of each juror the next morning. Id. “Each of the jurors indicated . . . that they had not discussed the case with anyone after they were evacuated from the courthouse, ” and that they were not “tainted by any outside influence during the separation and . . . did not discuss the case amongst themselves after they were evacuated.” Id. at *7. The defense filed a motion for a mistrial, which the court denied. Id. at *1. George Liggons, who had been subpoenaed to testify and was among those in the courthouse evacuated, did not return the next day to testify. Miller IV, 2015 WL 3881597, at *3.

         Defense counsel called several witnesses, but did not call Priddy or Miller’s mother to testify, as had been done in the first trial. Id.; (See also ECF No. 24-13 at 6-8.) Defense witnesses that testified at the second trial, but not at the first, included a forensic scientist from the T.B.I., who stated that he was not able to match Miller’s fingerprints to any of the fingerprints found in the victim’s car (ECF No. 24-15 at 120-24); a forensic scientist with the T.B.I.’s crime lab, who testified that there was no blood on any of Miller’s clothes (id. at 132-40); a sergeant with the Brownsville Police Department, who testified that Harris and Bernil had admitted to him that they had stolen checks (ECF No. 24-16 at 13); a friend of the Miller family, who testified that the gun in Miller’s home had had dust on it (id. at 13-16); and Curtis Johnson, who testified that he was at the apartments on Fairground with Clement Harris until 3:30 a.m. on April 20, 1995, and that he did not see or hear anything strange while he was there (id. at 52-61).

         The jury returned a guilty verdict, and the trial court imposed a life sentence. (ECF No. 24-12 at 89.) After judgment was entered, defense counsel filed an untimely motion for a new trial, “raising, inter alia, the trial court’s refusal to grant a mistrial following [the] bomb threat and [its] admission of [Blackwell’s] prior testimony.” Miller III, 2013 WL 324401, at *1 The court held a hearing and denied the motion. Id.

         “The Defendant filed a notice of appeal, ” but “[b]ecause the motion for new trial was not filed timely, the [appellate court] addressed only the sufficiency of the evidence.” Id. (citing Miller II, 2004 WL 115374, at *1). The appellate court determined that the evidence was sufficient to convict Miller of first degree murder. Miller II, 2004 WL 115374, at *1. The defendant’s application for permission to appeal to the Tennessee Supreme Court was denied.

         III. Post-Conviction Proceedings and Delayed Direct Appeal

         Miller filed a state “petition for post-conviction relief . . . alleging that his lawyer . . . was ineffective for failing to timely file his motion for new trial.” Miller III, 2013 WL 324401, at *1. “[T]he parties stipulated that [defense] [c]ounsel did not timely file a motion for new trial in the Defendant’s second trial, ” and the post-conviction court granted a delayed appeal. Id. The post-conviction proceedings were stayed pending the appeal. Miller IV, 2015 WL 3881597, at *1.

         Miller argued in his delayed appeal that the trial court erred in declining to “grant[] his motion for a mistrial following the bomb threat at the beginning of the second trial.” Miller III, 2013 WL 324401, at *2. He also maintained that it was error for the court to have admitted the prior testimony of Katherine Blackwell after the Tennessee Court of Criminal Appeals had ruled in his first appeal that her testimony “was . . . prejudicial to him.” Id. at *10. The appellate court rejected both arguments. Id. at *13. The Tennessee Supreme Court denied permission to appeal.

         Upon resumption of the post-conviction proceeding in 2014, Miller filed an amended petition (ECF No. 24-34), “claiming ineffective assistance of counsel for failure to call three potential alibi witnesses.” Miller IV, 2015 WL 3881597, at *1, 3. The post-conviction trial court found that counsel had not provided ineffective assistance and denied the claims. Id. at *1. Miller appealed, and the Tennessee Court of Criminal Appeals affirmed. Id. The Tennessee Supreme Court denied permission to appeal.

         DISCUSSION

         On November 20, 2015, Miller filed his federal Petition, which consists of a seventy-seven-page main document (ECF No. 1), supplemented by 196 pages of argument (ECF Nos. 1-1, 1-2, and 1-3). He asserts six claims that challenge certain TCCA rulings made in his several appeals (Claims 47 through 52); a stand-alone claim of actual innocence (Claim 53); twenty-three claims of counsel’s ineffective assistance, which he concedes are procedurally defaulted (even numbered claims in the range 2 through 46); a gateway claim of actual innocence to excuse the procedural defaults (portion of Claim 1); and twenty-three assertions that post-conviction counsel was ineffective for failing to raise the procedurally defaulted ineffective assistance claims (portions of Claim 1, and odd numbered “claims” in the range 1 through 45).[3] (ECF No. 1 at 16-26.) Respondent, Kevin Genovese, filed the state-court record (ECF No. 24), and a fifty-one-page answer to the Petition (the “Answer”) (ECF No. 23) on February 13, 2017. He argues that the procedural defaults are unexcused, and that the claims challenging the TCCA’s determinations are without merit.

         On April 17, 2017, Petitioner filed documents styled “Motion for Leave to Conduct Discovery & Motion for Fact Finding Procedures/Expansion of the Record” (ECF No. 32), “Motion for Fact Finding Procedures” (ECF No. 33), and “Plaintiff’s Reply and Memorandum of Law and Facts in Support of Motion for Fact-finding Procedures” (the “Reply”) (ECF No. 34). Respondent filed a response opposing the motions. (ECF No. 39.) The Court denied Petitioner’s motions without prejudice on February 26, 2019. (ECF No. 42.) “Given the number of procedurally defaulted claims, ” the Court advised the parties that it would “consider [the] discovery arguments when it addresses the merits of the Petition.” (Id. at 3.)

         On June 4, 2018, Miller filed a document titled “Motion to Grant a Martinez Hearing.” (ECF No. 43.) He argues that the ten procedurally defaulted claims for which he had requested discovery should be litigated in a hearing regarding cause and prejudice under Martinez v. Ryan, 566 U.S. 1 (2012). By order dated March 19, 2019, the Court directed the parties to submit supplemental briefs addressing the Supreme Court law governing Petitioner’s claim that the admission of Kathy Blackwell’s testimony at his second trial violated his constitutional right to confront witnesses. (ECF No. 47.) Petitioner thereafter filed his supplemental brief (ECF No. 48), as did Respondent (ECF No. 49).

         I. Legal Standards

         A. Habeas Review and Procedural Default

         The statutory authority for federal courts to issue habeas corpus relief for persons in state custody is provided by § 2254, as amended by the Antiterrorisim and Effective Death Penalty Act (“AEDPA”). See 28 U.S.C. § 2254. Under § 2254, habeas relief is available only if the prisoner is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

         The availability of federal habeas relief is further restricted where the petitioner’s claim was “adjudicated on the merits” in the state courts. 28 U.S.C. § 2254(d). In that circumstance, the federal court may not grant relief unless the state-court decision “‘was contrary to’ federal law then clearly established in the holdings of [the Supreme] Court; or that it ‘involved an unreasonable application of’ such law; or that it ‘was based on an unreasonable determination of the facts’ in light of the record before the state court.” Harrington v. Richter, 562 U.S. 86, 100 (2011) (quoting 28 U.S.C. § 2254(d)(1)-(2)) (citations omitted)).

         A state court’s decision is contrary to federal law when it “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law, ” or when “the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at” an “opposite” result. Williams v. Taylor, 529 U.S. 362, 405 (2000). An unreasonable application of federal law occurs when the state court, having invoked the correct governing legal principle, “unreasonably applies the . . . [principle] to the facts of a prisoner's case.” Id. at 409.

         For purposes of § 2254(d)(2), a state court’s “factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). The Sixth Circuit construes § 2254(d)(2) in tandem with § 2254(e)(1) to require a presumption that the state court’s factual determination is correct in the absence of clear and convincing evidence to the contrary. Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir. 2010) (citing Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). A state court’s factual findings are therefore “only unreasonable where they are ‘rebutted by clear and convincing evidence and do not have support in the record.’” Moritz v. Woods, 692 F. App’x 249, 254 (6th Cir. 2017) (quoting Pouncy v. Palmer, 846 F.3d 144, 158 (6th Cir. 2017)) (internal quotation marks omitted).

         Before a federal court will review the merits of a claim brought under § 2254, the petitioner must have “exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). To be properly exhausted, a claim must be “fairly presented” through “one complete round of the State's established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 848 (1999).

         The exhaustion requirement works in tandem with the procedural-default rule, which generally bars federal habeas review of claims that were procedurally defaulted in the state courts. Id. at 848. A petitioner procedurally defaults his claim where he fails to properly exhaust available remedies (that is, fails to fairly present the claim through one complete round of the state's appellate review process), and he can no longer exhaust because a state procedural rule or set of rules have closed-off any “remaining state court avenue” for review of the claim on the merits. Harris v. Booker, 251 F.App'x 319, 322 (6th Cir. 2007). Procedural default also occurs where the state court “actually . . . relied on [a state] procedural bar as an independent basis for its disposition of the case.” Caldwell v. Mississippi, 472 U.S. 320, 327 (1985). To cause a procedural default, the state court’s ruling must “rest[] on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991) (citing Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935); Klinger v. Missouri, 80 U.S. 257, 263 (1871)).

         A petitioner will he be entitled to federal court review of the merits of a claim that was procedurally defaulted if he “demonstrate[s] that failure to consider the claim[] will result in a fundamental miscarriage of justice, ” Id. at 750. A fundamental miscarriage of justice involves “a prisoner[‘s] assert[ion of] a claim of actual innocence based upon new reliable evidence.” Bechtol v. Prelesnik, 568 F.App'x 441, 448 (6th Cir. 2014).

         A procedural default will also be excused where the petitioner shows “cause for the default and actual prejudice as a result of the alleged violation of federal law.” Id. The ineffectiveness of counsel at the initial post-conviction stage may be cause to excuse the default of an ineffective-assistance-of-trial-counsel claim. Trevino v. Thaler, 569 U.S. 413, 423 (2013) (citing Martinez, 566 U.S. 1, 14, 16-17 (2012)). To establish cause in that context, a petitioner must show that his post-conviction counsel “was ineffective under the standards of Strickland.” Martinez, 566 U.S. at 14. He must therefore show that post-conviction counsel performed deficiently and that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the [post-conviction] proceeding would have been different.” Strickland, 466 U.S. at 694. A petitioner must also establish that the “underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that [he] . . . must demonstrate that the claim has some merit.” Martinez, 566 U.S. at 14. See also Hall v. Carpenter, No. 05-1199-JDB-EGB, 2015 WL 1464017, at *16 (W.D. Tenn. Mar. 30, 2015 (“To be ‘substantial’ under Martinez, a claim must have ‘some merit’ based on the controlling standard for ineffective assistance of counsel stated in Strickland . . . .”)

         B. Ineffective Assistance of Counsel

         A claim that an attorney’s ineffective assistance has deprived a criminal defendant of his Sixth Amendment right to counsel is controlled by the standards stated in Strickland v. Washington, 466 U.S. 668 (1984). To succeed on such a claim, a petitioner must demonstrate two elements: (1) “that counsel’s performance was deficient”; and (2) “that the deficient performance prejudiced the defense.” Id. at 687. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686.

         To establish deficient performance, a petitioner “must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. A court considering a claim of ineffective assistance must apply “a strong presumption” that the attorney’s representation was “within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689 (internal quotation marks and citation omitted).

         An attorney’s “strategic choices” are “virtually unchallengeable” if based on a “thorough investigation of law and facts relevant to plausible options . . . .” Strickland, 466 U.S. at 690. “[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id. at 690-91.

         To demonstrate prejudice, a petitioner must establish “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “It is not enough ‘to show that the errors had some conceivable effect on the outcome of the proceeding.’” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 693) (citations omitted). Instead, “[c]ounsel’s errors must be ‘so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’” Id. (quoting Strickland, 466 U.S. at 687).

         The deference to be accorded a state-court decision under 28 U.S.C. § 2254(d) is magnified when a federal court reviews an ineffective assistance claim:

Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.

Id. at 105.

         II. Discovery and Evidentiary Hearing

         A federal habeas court’s review of a claim under § 2254(d) is “limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). A petitioner seeking an evidentiary hearing on a claim that was not adjudicated on the merits must demonstrate “that he attempted to develop the factual basis for such claims with requisite diligence, see Williams v. Taylor, 529 U.S. 420, 430–37 (2000), or, under the standard described in Section 2254(e)(2)(A)(i)-(ii), show either that a new constitutional rule applies to his claims or that their factual predicate was previously undiscoverable through the exercise of due diligence.” Johnson v. Warden, Lebanon Corr. Inst., No. 1:12-CV-00560, 2014 WL 1382147, at *2 (S.D. Ohio Apr. 8, 2014) (citing Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d 452, 464–65 (6th Cir. 2011)).

         There is no controlling authority in this Circuit as to whether a petitioner who requests an evidentiary hearing on Martinez cause and prejudice must meet § 2254(e)’s requirements. See Smith v. Carpenter, No. 3:99-CV-0731, 2018 WL 317429, at *3–4 (M.D. Tenn. Jan. 8, 2018), cert. of appealability denied sub nom. Smith v. Mays, No. 18-5133, 2018 WL 7247244 (6th Cir. Aug. 22, 2018) (relying on intra-circuit cases for its holding that “petitioner’s assertion that he can overcome default pursuant to Martinez is simply not a ‘claim’ to which § 2254(e)(2) would apply”). But even assuming that § 2254(e)(2) does not bar a Martinez hearing, a petitioner does not have an absolute right to such a proceeding. See e.g. Segundo v. Davis, 831 F.3d 345, 351 (5th Cir. 2016) (refusing “to hold that Martinez mandates an opportunity for additional fact-finding in support of cause and prejudice, ” as such a ruling “would effectively guarantee a hearing for every petitioner who raises an unexhausted [ineffective assistance of trial counsel] claim and argues that Martinez applies.”)

         Instead, where factual development is not precluded under § 2254(e)(2), the decision to hold a hearing is within the court’s sound discretion. Schriro v. Landrigan, 550 U.S. 465, 468 (2007) (“In cases where an applicant for federal habeas relief is not barred from obtaining an evidentiary hearing by 28 U.S.C. § 2254(e) (2), the decision to grant such a hearing rests in the discretion of the district court.”); Ata v. Scutt, 662 F.3d 736, 742 (6th Cir. 2011) (same); see also generally Habeas Rule 8, Rules Governing Section 2254 Cases in the United States District Courts (individually, “Habeas Rule”) (federal habeas court “must . . . determine whether an evidentiary hearing is warranted.”). “In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Schriro, 550 U.S. at 474.

         A habeas court also retains discretion to decide whether to allow discovery. Under Habeas Rule 6, “[a] court may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of discovery.” Habeas Rule 6(a). “Good cause exists where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is entitled to relief.” Payne v. Bell, 89 F.Supp. 2d 967');">89 F.Supp. 2d 967, 970 (W.D. Tenn. 2000) (citing Harris v. Nelson, 394 U.S. 286, 300 (1969); Lynott v. Story, 929 F.2d 228, 232 (6th Cir. 1991)). The “[p]etitioner need not show that the additional discovery would definitely lead to relief.” Id.

         Neither discovery nor an evidentiary hearing is warranted if the issues are resolvable on the state court record. See Schriro, 550 U.S. at 474 (“[I]f the record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.”); Davis v. Bradshaw, 900 F.3d 315, 334 n.13 (6th Cir. 2018) (“further fact development” is not required where “the record refute[s] [petitioner’s] factual allegations or otherwise precludes ... relief.”) (quoting Turner v. Romanowski, 409 F.App'x 922, 930 (6th Cir. 2011) (citation and internal quotation marks omitted)). Discovery and a hearing will also not be granted where the requests for such are not supported by specific allegations. Stanford v. Parker, 266 F.3d 442, 459-60 (6th Cir. 2001) (quoting Zettlemoyer v. Fulcomer, 923 F.2d 284, 301 (3d Cir. 1991) (“Bald assertions and conclusory allegations do not provide sufficient ground to warrant requiring the State to respond to discovery requests or to require an evidentiary hearing.”); Payne, 89 F.Supp. 2d at 970 (“[A] petitioner may not embark on a fishing expedition intended to develop claims for which there is no factual basis.”) (citing Calderon v. U.S. Dist. Ct. for N.D. Cal., 98 F.3d 1102, 1106 (9th Cir. 1996)).

         The Court has considered the “new” evidence which Miller believes credibly points to probative evidence that could be developed through discovery or an evidentiary hearing. The Court has also taken into account the entire state court record, the parties’ arguments, and the relevant case law. For the reasons provided in Part IV, infra, the Court finds that Petitioner is not entitled to discovery or an evidentiary hearing as to any of the claims for which he seeks those procedures. The requests for discovery and an evidentiary hearing are therefore DENIED.

         III. Claims Adjudicated on the Merits in State Court: Claims 47 to 52

         Petitioner asserts that certain determinations by the Tennessee Court of Criminal Appeals do not survive AEDPA review. (ECF No. 1 at 27-28.) Specifically, he argues that the appellate court unreasonably concluded that counsel was not ineffective by failing to call three witnesses to testify on his behalf (Claims 47 and 48); unreasonably determined that the trial court did not err in refusing to grant a mistrial after the bomb threat (Claims 49 and 50); and unreasonably held that the trial court did not err in admitting the testimonies of Nina Champion and Kathy Blackwell (Claims 51 and 52). In his Answer, Respondent argues that all of the determinations meet the AEDPA’s deferential review. (ECF No. 23 at 31-50.) In his supplemental brief, he argues for the first time that the claim relating to Kathy Blackwell is procedurally defaulted. (ECF No. 49 at 1.)

         A. Claims 47 and 48

         Petitioner asserts that the determination by the Tennessee Court of Criminals that counsel was not ineffective in failing to call George Liggons, Rosa Carney, and Lucille Miller to testify at the second trial was contrary to and based on an unreasonable application of clearly established Supreme Court law (Claim 47), and was based on an unreasonable determination of the facts (Claim 48). (ECF No. 1 at 27.) He argues that counsel’s “fail[ure] to call [these] exculpatory alibi eyewitnesses . . . was deficient, and prejudicial because had these witnesses been called no reasonable juror would have convicted [him] of the murder of Donald Rice.” (ECF No. 1-3 at 60.) Respondent maintains that the appellate court’s decision was not unreasonable in any respect. (ECF No. 23 at 34.) The Court agrees.

         Carney testified at the post-conviction hearing that Miller had come to her home in Stanton, Tennessee, in the early evening prior to the shooting, around “dusk dark, ” which was “roughly about the time the sun was going down.” (ECF No. 24-35 at 10.) She recalled that she was not feeling well and was in bed when Petitioner came and asked her to get up and whether she wanted a snack. (Id.) When she explained that she was sick, he took her kids to get some snacks, brought them back, and then went across the street. (Id. at 9, 15.) When asked on cross-examination whether Miller was at her home “after twelve o’clock or twelve at night” or whether she was “in bed by then, ” she answered “I was in bed.” (Id. at 15.) She confirmed that Stanton is “roughly” twelve or thirteen miles from Brownsville. (Id. at 10.)

         Liggons testified that “he was with petitioner at work all day on [the day before the murder], until petitioner drove him home, ” Miller IV, 2015 WL 3881597, at *5, at “about five or six o’clock” in the evening (ECF No. 24-35 at 24.) At that time, “[t]he sun was still up.” (Id.) Liggons could not “say what [Miller] did after he dropped [him] off that evening.” (Id. at 28.) He further confirmed that he was at the courthouse during the second trial when everyone was evacuated for the bomb threat. (Id. at 27.) He recalls that he did not testify at that trial. (Id.)

         Counsel Houghton testified that she “had been employed with the district public defender's office and had been appointed to represent petitioner before his 2001 trial.” Miller IV, 2015 WL 3881597, at *2. She explained that she and her office “knew what the State's theories would be” because “they had the transcript of the 1996 trial.” Id. “Collectively, the office staff thought that the State's case depended largely on the testimony of Clement Harris, the eyewitness who saw petitioner shoot the victim.” Id. Because “Harris held fast to his story, they tried to develop an alibi” defense. Id. “In doing so, they spoke with [Rosa] Carney and others.” Id. Although “Petitioner was well-liked, and many people wanted to help him, ” counsel and her office “‘just never could pin down anyone who could say that they saw [Miller] at the time that this shooting was to have occurred, ’ which was 1:00 to 2:00 a.m. on April 20.” Id.

         Counsel testified “that she called Nina Champion as a witness at the preliminary hearing, ” and that “Champion [had] testified that she saw a shotgun in petitioner's trunk and shells in his back seat on the day in question.” Id. at *3. Because Champion was murdered prior to the first trial, ...


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