United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING § 2254 PETITION, DENYING
CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN
THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE
Saidrick Pewitte has filed a pro se habeas corpus
petition (the “Petition”), pursuant to 28 U.S.C.
§ 2254. (ECF No. 1.) For the reasons that follow, the
Petition is DENIED.
September 2012, a Madison County, Tennessee, grand jury
charged Pewitte with possession of cocaine with intent to
sell or deliver, possession of a schedule III controlled
substance with intent to sell or deliver, and possession of a
deadly weapon with intent to employ the weapon in the
commission of a dangerous felony. (ECF No. 13-1 at 6-12.) At
the jury trial in January 2013, Jackson Police Department
Investigator Samuel Gilley testified that, pursuant to a
warrant, his team conducted a search of the defendant’s
home on October 5, 2011. State v. Pewitte, No.
W2013-00962-CCA-R3CD, 2014 WL 1233030, at *1 (Tenn. Crim.
App. Mar. 25, 2014), perm. appeal denied (Tenn. June
20, 2014). Immediately prior to the search, Gilley observed
Pewitte’s step-father Curtis Goyer and Pewitte’s
cousin Christian Ellison enter the home. Id. The
police then forcibly entered the house, and observed the
defendant “sitting on his bed” in a room that was
adjacent to, and down several steps from, the kitchen.
Id. Police detained Ellison “on the small
staircase that led into the kitchen” and detained Goyer
near the front door. Id.
the search officers discovered the following items on the
nightstand in Pewitte’s bedroom: “two bags of
cocaine that were wrapped individually” in plastic
bags, “a clear plastic bag that had nine Lortab pills
and three Vicodin pills . . . tied up in like a sandwich
baggy, ” and “a box of sandwich bags.”
Id. at *1-2. Inside the nightstand drawer the police
discovered “a loaded .38 [caliber] revolver, ” a
holster, and “some bullets and a wallet with $667 in
cash and the Defendant’s Social Security card.”
Id. at *2. “The police also seized a plastic
bag containing twenty-seven rounds of ammunition for a .38
caliber revolver from the Defendant’s bedroom cabinet,
” and “[n]ear these bullets, there was a Crown
Royal bag containing $1, 395 in cash.” Id.
“[T]wo large bags of cocaine [were] recovered from a
kitchen cabinet.” Id. The police also found
“a blue bag . . . on the stairs . . . going from th[e]
bedroom area up to the kitchen that had digital scales, some
spoons, [and] some plastic bags that had . . . the corners
twisted off.” Id. “Some of the[se] items
had [a] white powdery residue.” Id. On
cross-examination, Gilley stated that “the Defendant
reported having knee problems and required assistance from a
wheelchair when the police took him out of the
residence.” Id. A forensic scientist testified
that the substances found in Pewitte’s home were
cocaine and tablets containing “hydrocodone, a Schedule
III controlled substance.” Id. at *3.
police sergeant Phillip Kemper “testified that he . . .
took a statement from the Defendant during the search of the
residence.” Id. The statement, which was read
into the record, “contained, in pertinent part, ”
Pewitte’s assertions that “[t]he powder and pills
on the table by my bed belonged to me because I am in a lot
of pain and I have a drug problem, ” that the gun was
for self-protection due to “some bad things [that] have
gone on in my neighborhood, ” and that the money in the
nightstand was from a “disability check.”
testified that immediately prior to the search he noticed the
police outside the house that belonged to his uncle, and at
which the defendant resided. Id. The witness
“‘took off into the house’ to tell
[Pewitte] that the police were outside.” Id.
at *3. “[W]hen he told the Defendant about the police,
the Defendant threw a purple Crown Royal bag at him, ”
which “hit him in the chest and fell onto the
steps” that led to the bedroom. Id. Ellison
noticed that “[a] white compact substance fell out of
the bag onto the floor along with some bags and a
scale.” Id. “[B]ecause he wanted to help
his cousin, ” he “grabbed the drugs and
‘threw them into the cabinet.’”
Id. Ellison denied that “the drugs and other
items . . . belong[ed] to him.” Id. He also
testified that, as a result of knee surgery, Pewitte
“was confined to the hospital bed in his room for
months” and was taking medication to reduce pain.
testified that he owned and lived in the house that was
searched and that the Defendant had been living with him for
several years. Id. at *4. He confirmed that Pewitte
had surgery on his legs and had been “stay[ing] in a
hospital bed in the den.” Id. Although
“he was not aware of drugs in his house on the day of
the search, ” he stated that “he had previously
observed the Defendant use small packets of cocaine on at
least two occasions.” Id. Goyer also testified
that Pewitte “obtained [the gun] after his
injury” and that he was receiving “monthly
disability check[s] of ‘$800 or $900’” and
had secured a loan for “about $1, 500” prior to
the search. Id. The witness “was also aware
that the Defendant took ‘lots of
Defendant chose not to testify and the defense did not
present any proof at trial.” Id. The jury
returned guilty verdicts on all counts, and Pewitte was
sentenced as a multiple offender to “an effective
sentence of twenty-eight years in the Department of
Correction.” Id. On direct appeal, he
challenged the sufficiency of the evidence to convict him of
the offenses. Id. at *5. After the Tennessee Court
of Criminal Appeals affirmed the judgment, see Id .
at *8, the Tennessee Supreme Court denied permission to
appeal (see ECF No. 13-20).
filed a pro se post-conviction petition in state
court asserting claims of attorney ineffective assistance
(ECF No. 13-13 at 3-34), which was amended several times by
appointed counsel (id. at 49-50, 53-54, 57-58).
Following an evidentiary hearing (ECF No. 13-16), the
post-conviction trial court denied relief in a written
decision. (ECF No. 13-13 at 63-66.) The Tennessee Court of
Criminal Appeals affirmed the judgment, and the Tennessee
Supreme Court denied permission to appeal. Pewitte v.
State, No. W201500883CCAR3PC, 2016 WL 1719432, at *8
(Tenn. Crim. App. Apr. 27, 2016), perm. appeal
denied (Tenn. Aug. 19, 2016).
September 2016, Pewitte filed his Petition, asserting that
the Tennessee Court of Criminal Appeals was unreasonable in
rejecting his evidence-sufficiency and
attorney-ineffective-assistance claims. (ECF No. 1 at PageID
5-7.) Respondent, Shawn Phillips, filed the state-court
record (ECF No. 13) and an answer (ECF No. 14) to the
Petition, in which he argues that Petitioner’s claims
are without merit. Pewitte filed a reply, maintaining that he
is entitled to relief. (ECF No. 23.)
Habeas Review and Procedural Default
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).
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)).
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.
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
Fed.App’x 249, 254 (6th Cir. 2017) (quoting Pouncy
v. Palmer, 846 F.3d 144, 158 (6th Cir. 2017)) (internal
quotation marks omitted).
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).
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 Fed.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)).
when the petitioner shows “cause for the default and
actual prejudice as a result of the alleged violation of
federal law, or demonstrate[s] that failure to consider the
claim will result in a fundamental miscarriage of justice,
” will he be entitled to federal court review of the
merits of a claim that was procedurally defaulted.
Id. at 750. The ineffectiveness of post-conviction
counsel 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 v.
Ryan, 566 U.S. 1, 14, 16-17 (2012)). 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
Fed.App’x 441, 448 (6th Cir. 2014).
Insufficiency of the Evidence
Supreme Court’s decision in Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979), provides the
federal due process standard for evidentiary sufficiency in
criminal cases. See Coleman v. Johnson, 566 U.S.
650, 651 (2012) (per curiam) (holding Jackson
applies to sufficiency-of-the-evidence claims on habeas
review under § 2254(d)). In Jackson, the
Supreme Court announced that “the relevant
question” “on review of the sufficiency of the
evidence to support a criminal conviction, ” is
whether, “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson, 443 U.S.
at 318-19 (emphasis in original).
Jackson standard “gives full play to the
responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from the basic facts to ultimate
facts.” Id. at 319. See also Cavazos v.
Smith, 565 U.S. 1, 2 (2011) (per curiam) (holding that,
under Jackson, “it is the responsibility of
the jury-not the court-to decide what conclusions should be
drawn from evidence admitted at trial.”).
Jackson’s evidence-sufficiency standard may be
met with circumstantial evidence. See Desert Palace,
Inc., v. Costa, 539 U.S. 9, 100 (2003) (“[W]e have
never questioned the sufficiency of circumstantial evidence
in support of a criminal conviction, even though proof beyond
a reasonable doubt is required.”); see also United
States v. Algee, 599 F.3d 506, 512 (6th Cir. 2010)
(“Circumstantial evidence alone is sufficient to
sustain a conviction and such evidence need not remove every
reasonable hypothesis except that of guilt.”).
AEDPA adds a layer of deference to Jackson’s
already deferential standard. By virtue of the AEDPA’s
command that federal habeas relief may issue only if the
state court’s decision is “contrary to”
controlling federal law or “based on an unreasonable
application” of the controlling federal law, 28 U.S.C.
§ 2254(d)(1)-(2), a state court determination that the
evidence satisfied the deferential Jackson standard
is itself “entitled to considerable deference” by
the federal habeas court. Coleman, 566 U.S. at 656.
Ineffective Assistance of Counsel
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.
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).
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.
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.’” Richter, 562 U.S. at 104
(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).
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:
Under AEDPA, a state court must be granted a deference and
latitude that are not in operation in a case involving direct
review under Strickland. A state court’s
determination that a claim lacks merit precludes federal
habeas relief so long as “fairminded ...