United States District Court, E.D. Tennessee, Chattanooga
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE
his conviction for first-degree murder, Petitioner, Alex
Stevino Porter, has filed a pro se petition for a writ of
habeas corpus, pursuant to 28 U.S.C. §2254, alleging
sufficiency of the evidence claims, violations of his Sixth
Amendment rights to confrontation and the effective
assistance of counsel, and prosecutorial suppression of
exculpatory evidence [Doc. 1]. Petitioner's petition for
habeas corpus was stayed in its entirety, pursuant to his
motion for abeyance requested to allow him to exhaust state
court remedies, and he filed a Motion to Reopen on January
22, 2018 [Doc. 34]. Petitioner's Motion to Reopen will be
GRANTED. After reviewing the parties'
filings and the relevant state court record, the Court has
determined that Petitioner is not entitled to relief under
§2254, and no evidentiary hearing is warranted.
See Rules Governing § 2254 Cases, Rule 8(a) and
Schriro v. Landrigan, 550 U.S. 465, 474 (2007). For
the reasons set forth below, the §2254 petition will be
DENIED, and this matter will be
of 2005, Petitioner was charged with first-degree murder and
conspiracy to commit first-degree murder related to the
shooting death of Antonio Ware. State v. Porter, No.
E2007-01101-CCA-R3-CD, 2008 Tenn. Crim. App. LEXIS 965, at *2
(Tenn. Crim. App. Dec. 10, 2008)(“Porter
I”). At trial, the State adduced evidence that on
August 2, 2004, Petitioner asked Dustin Witt to drive him
near Tennessee Wesleyan College; the two were accompanied by
Kenneth Hammonds, Cornell Perry Gunter, and Clifton Omar
Robinson.[1" name="FN1" id=
"FN1">1] Id. While Mr. Witt parked the
car, the other four men walked to the home of Kim Arnwine.
Id. at *3. Petitioner, along with Mr. Gunter and Mr.
Robinson, hid behind bushes near Ms. Arnwine's home;
however, Mr. Hammonds was apprehensive about the body
language of the other men and decided to leave the area.
Id. at *4.
victim and an associate, Marvin Goodman, had stopped by Ms.
Arnwine's home around 9:30 or 9:45 p.m. that same evening
after seeing Ms. Arnwine earlier in the day at Cook Park, an
area known for drug activity. Id. at *3. Ms. Arnwine
testified at trial that the victim, who was carrying a gun,
was agitated and mentioned going to “take care
of” some boys in Athens and that Mr. Goodman attempted
to calm him down. Id. She further stated that while
the victim was in her home, her brother Ezra Arnwine, who
frequently associated with Mr. Robinson, Mr. Gunter, and Mr.
Hammonds, called and asked if she had company. Id.
at *4. Petitioner called soon after, also asking if she had
company and if he could come over, to which Ms. Arnwine
indicated that he could come over in a little while after her
company, whom she did not identify, left. Id. at *3
- 4. Confirming this testimony, Mr. Witt testified that he
and Petitioner had moved from the bushes to a shed behind Ms.
Arnwine's house and that he overheard the phone call.
Id. at *4. He stated that after hanging up the
phone, Petitioner pulled out a gun and stated that he was
“ready to give it to this mother f---er because he
tried to rob my sister Mary not too long ago and I still
haven't forgot [sic] about it.” Id. at *4
- 5. Mr. Witt testified that at this point he also decided to
leave. Id. at *5. Mr. Robinson, who had remained in
the bushes, left after approximately ten to fifteen minutes.
Witt testified that as he began to leave, the victim and Mr.
Goodman exited Ms. Arnwine's house,  and that when Mr.
Witt turned around, he saw Petitioner crouch down and fire
his weapon at the victim. Id. Mr. Gunter confirmed
this testimony; he stated that he heard Petitioner say he was
going to “handle this, ” and likewise saw
Petitioner crouch down and shoot the victim, without any
indication that the victim ever saw Petitioner before he
shot. Id. at *6. Mr. Witt claimed that he dropped
his keys and that by the time he located them, Petitioner and
Mr. Gunter were running towards him and they all got into the
car and left. Id. at *5. They later picked up Mr.
Arnwine, who had heard the gunfire, had huddled her children
on the floor when Mr. Goodman ran back into the house to tell
her that something had happened to the victim. Id.
at *4. Ms. Arnwine then called 911, after which she
walked outside and saw the victim's body on the ground.
Id. Van Sliger, a nearby neighbor, stated that he
was awakened by the gun shots and when he looked out his
window, “he saw three black males run around his
garage, get into an older model white Oldsmobile or Buick,
and drive away.” Id. at *6. Mr. Sliger then
drove to the scene where he saw police officers as well as
the victim's body. Id.
Robinson and Mr. Gunter each gave their weapons to
Petitioner, who was to dispose of them along with his own
weapon. Id. at *5 - 6. Petitioner would later lead
police officers to a two-feet deep hole in a wooded area with
burnt pieces of a 9mm Hi-Point semi-automatic and other burnt
material in it. Id. at *6 - 7. Officers indicated
that “investigation revealed that [Petitioner] was in
possession of the Hi-Point 9mm on the night of Mr. Ware's
death.” Id. at *7.
officers arrived at the scene, they found the body of Mr.
Ware, who had been shot several times. Id. at *2.
They likewise found “one bullet in the gravel under Mr.
Ware's head and several other shell casings that were
both 9mm and .380 caliber.” Id. at *6.
Autopsy revealed that Mr. Ware had died of the multiple
gunshot wounds to his head, arm, chest, and hip, which
had moved from back to front and right to left respectively.
Id. at *7. Special Agent Shelly Betts, an agent with
the Tennessee Bureau of Investigation, “examined three
fired bullets, six fired cartridge cases, several unfired
cartridges, two revolvers, one pistol and firearms that had
been destroyed with some sort of torch.” Id.
She found that all three bullets had similar rifling, but
that while she could identify the two .380 bullets as coming
from the same weapon, the 9mm bullet “did not have
‘sufficient individualizing characteristics'
remaining for her to conclusively state that it was also
fired from the same weapon.” Id. at *7-8. Of
the six cartridge cases, Agent Betts determined that three of
the cartridge cases were .380 cases while the other three
were 9mm cases; she ascertained that all were fired from the
same weapon, but was unable to determine if they were fired
from the destroyed Hi-Point pistol. Id. at *8.
January 30, 2007 a McMinn County jury convicted Petitioner of
first-degree premeditated murder and sentenced him to life in
prison. Id. at *1. Petitioner appealed this
conviction to the Tennessee Court of Criminal Appeals
(“TCCA”), raising claims (1) that the evidence
was insufficient to support his conviction, (2) that the
trial court erred in denying his Motion for Judgment of
Acquittal, and (3) that the trial court deprived him of his
Sixth Amendment right to present a defense by excluding the
testimony of Valerie Ware and Mary White [Brief of Appellant
on Direct Appeal, ADD. 2-1]. The TCCA affirmed the
conviction. Id. Petitioner then applied for
permission to appeal to the Tennessee Supreme Court
(“TSC”) which the TSC denied. State v. Alex
Stevino Porter, No. E2007-01101-SC-R11-CD, 2009 Tenn.
LEXIS 446 (Tenn. May 4, 2009).
next filed a petition for state post-conviction relief,
alleging the ineffective assistance of counsel and the
prosecution's suppression of exculpatory evidence, which
was denied [Petition for Relief from Conviction or Sentence,
ADD. 3-1 p.1 - ADD. 3-2 p. 205]. Petitioner appealed the
dismissal of his post-conviction petition to the TCCA
alleging five grounds of the ineffective assistance of
counsel, one ground of the ineffective assistance of
appellate counsel, and that he was ultimately deprived of due
process [Brief of Appellant on Post-Conviction Appeal, ADD.
4-1]. The TCCA affirmed the denial. Alex Stevino Porter
v. State, No. E2012-00481-CCA-R3-PC, 2013 Tenn. Crim.
App. LEXIS 796 (Tenn. Crim. App. Sept. 18,
2013)(“Porter II”). Petitioner then
applied for permission to appeal to the TSC which was again
denied. Alex Stevino Porter v. State, No.
E2012-00481-SC-R11-PC, 2014 Tenn. LEXIS 201 (Tenn. Mar. 5,
Petitioner filed this petition for writ of habeas corpus in
June of 2014. On March 21, 2016, Petitioner filed a motion
for abeyance, asking that the Court stay his case until he
had properly exhausted his available local and state court
remedies [Doc. 20]. There was no opposition and the Court
stayed the matter in its entirety and ordered Respondent to
notify the Court when the state remedies were exhausted and
to file an amended answer addressing Petitioner's
additional state claims [Doc. 21]. On March 16, 2016,
Petitioner filed a motion in state court to re-open
post-conviction proceedings, raising the ineffective
assistance of counsel for improperly informing Petitioner of
his right to testify and prosecutorial misconduct [Doc. 27 p.
On April 11, 2016, the post-conviction court dismissed the
motion as untimely and duplicative of a previously decided
petition, and found that it failed to provide a legal basis
for reopening [Id.]. Petitioner did not appeal this
judgment to the TCCA [Doc. 27 p. 3]. Respondent did not alert
the court to the termination of state court proceedings or
file a supplemental response as ordered until April 19, 2017
filed a Motion to Reopen federal habeas proceedings on
January 22, 2018 [Doc. 34]. Petitioner did not, at any time,
attempt to amend his federal habeas petition to include his
claim that counsel was ineffective for failing to alert him
to his right to testify at trial. The only mention of this
claim in federal pleadings was a reference to it in his
Motion for Abeyance, filed nearly two years after his federal
habeas petition. As such, this claim is not properly before
the Court, but the Court notes that even if it were, it would
clearly be barred by the statute of limitations under the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). 28 U.S.C. §2244(d)(1)(A), (2).
Accordingly, the Court will now address the claims for
§2254 relief that Petitioner raised in his original
STANDARD OF REVIEW
the AEDPA, codified in 28 U.S.C. §2254, 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;
(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) and (2). This standard is
intentionally difficult to meet. Woods v. Donald,
135 S.Ct. 1372');">135 S.Ct. 1372, 1376 (2015) (quotation marks omitted). Under
the unreasonable application clause, the proper inquiry is
whether the state court's decision was “objectively
unreasonable, ” and not simply erroneous or incorrect.
Williams v. Taylor, 529 U.S. 362, 409 - 11 (2000).
The AEDPA likewise requires heightened respect for state
factual findings. Herbert v. Billy, 160 F.3d 1131');">160 F.3d 1131,
1134 (6th Cir. 1998). Where the record supports the state
court's findings of fact, those findings are entitled to
a presumption of correctness which may be rebutted only by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Exhaustion and Procedural Default
§2254 petition, Petitioner raises thirty-six claims, one
alleging that the evidence was insufficient to support his
conviction, one contending that his Sixth Amendment right to
present a defense was violated, thirty-one claims of the
ineffective assistance of trial and appellate counsel, and
three claims that the prosecution suppressed exculpatory
evidence [Doc. 1]. Respondent raises that many of the claims
set forth in Petitioner's federal habeas corpus petition
have been procedurally defaulted and may not now be addressed
on the merits [Doc. 9 p. 2 - 9]. Petitioner raises various
grounds as cause to excuse any such procedural default,
however, this Court finds that with the exception of six,
Petitioner's claims were not fairly presented to the
state courts and there is no cause for which to excuse his
a federal court may grant habeas relief to a state prisoner,
the prisoner must first exhaust the remedies available in
state courts. 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 to state courts to ensure states have a “full
and fair opportunity to rule on the petitioner's
claims.” Manning v. Alexander, 12 F.2d 878');">912 F.2d 878,
881 (6th Cir. 1990); See O'Sullivan, 526 U.S. at
842. Generally, to fulfill the exhaustion requirement, each
claim must have been presented to all levels of the state
appellate system, including the state's highest court.
Duncan v. Henry, 13 U.S. 364');">513 U.S. 364, 365-66 (1995);
Wagner v. Smith, 1 F.3d 410');">581 F.3d 410, 414 (6th Cir. 2009).
However, the Tennessee Supreme Court has established that
when the Tennessee Court of Criminal Appeals has denied
relief on a claim, it is exhausted regardless of appeal to
the Tennessee Supreme Court. Tenn. S.Ct. Rule 39 (Supp.
2001). Although exhaustion is typically required for merits
review of a claim, if there are no further state court
remedies available to a petitioner, lack of exhaustion will
not foreclose merits review. Rust v. Zent, 17 F.3d
155, 160 (6th Cir. 1994).
of exhaustion, a claim may be precluded from review if it is
procedurally defaulted. Wallace v. Sexton, 570
Fed.Appx. 443, 449 (6th Cir. 2014). Procedural default occurs
when (1) the claim was never presented to the highest
available state court and is now barred from such
presentation by a state procedural rule, or (2) a state court
was prevented from “reaching the merits of the
petitioner's claim” because petitioner failed to
comply with an applicable state procedural rule, which is
regularly enforced and is an “adequate and
independent” state ground. Id. (citing
Maupin v. Smith, 135');">785 F.2d 135, 138 (6th Cir. 1986));
Seymour v. Walker, 224 F.3d 542, 549-550 (6th Cir.
2000) (citing Wainwright v. Sykes, 433 U.S. 72, 80,
has twice been before the TCCA, once on Direct Appeal and
again appealing the denial of post-conviction relief. On
Direct Appeal, Petitioner raised only three claims: (1) that
the evidence was insufficient to support his conviction, (2)
that the trial court erred in denying his Motion for Judgment
of Acquittal, and (3) that the trial court deprived him of
his Sixth Amendment right to present a defense by excluding
the testimony of Valerie Ware and Mary White [Brief of
Appellant on Direct Appeal, ADD. 2-1]. In the appeal of the
dismissal of his post-conviction appellate brief, Petitioner
raised five claims of the ineffective assistance of counsel
alleging that counsel was ineffective for inadequately
developing a theory of self-defense, allowing a witness to
improperly assert Fifth Amendment silence, failing to inform
Petitioner of his right to testify, announcing to the jury
that Petitioner was incarcerated, and failing to challenge
the expert testimony proffered by Agent Betts. [Brief of
Appellant on Post-Conviction Appeal, ADD.4-1, p. 36]. He
likewise alleged an unspecific claim of the ineffective
assistance of appellate counsel, which does not encompass any
of the facts or legal theories included in his federal habeas
petition regarding appellate counsel, and another generalized
claim alleging that he was denied due process in his
post-conviction proceedings due to “the deficiencies
marring the investigation and presentation of evidence at the
evidentiary hearing” [Id.].
Petitioner raised nearly all of the claims he now raises in
his post-conviction petition, he failed to raise them on
direct appeal and abandoned these claims on appeal of the
dismissal of his post-conviction petition, thus rendering
them unexhausted. However, due to Tennessee's one-year
statute of limitations and one petition rule, state remedies
are foreclosed to Petitioner and lack of exhaustion will not
prevent federal habeas review of his claims. Rust,
17 F.3d at 160; See Tenn. Code Ann. §
40-30-102. Instead, Petitioner's claims are procedurally
defaulted as a result of having never been raised to the
state's highest court and being foreclosed from such
presentation now. Wallace, 570 Fed.Appx. at 449. As
such, Petitioner's claims will only be considered on
their merits to the extent that he can demonstrate cause and
actual prejudice to excuse this default.
Cause and Prejudice
contends that his procedural default should be excused for
cause; specifically, he alleges that the procedural default
of any ineffective assistance of counsel claims may be
attributed to the ineffective assistance of post-conviction
counsel and that the procedural default of any prosecution
suppression claims is a result of the state's continued
suppression of the evidence needed to properly raise these
claims [Doc. 1, Doc. 15]. Neither of these are sufficient
cause to excuse Petitioner's procedural default and his
defaulted claims will not be reviewed on their merits.
Courts have carved out a narrow set of circumstances in which
procedural default may be excused and defaulted claims may be
evaluated on their merits. Procedurally barred claims may be
considered on their “merits only if the petitioner
establishes (1) cause for his failure to comply with the
state procedural rule and actual prejudice from the alleged
violation of federal law or (2) demonstrates that his is
‘an extraordinary case, where a constitutional
violation has probably resulted in the conviction of one who
is actually innocent.'” Wallace, 570
Fed.Appx. at 452 (quoting Murray v. Carrier, 477
U.S. 478, 496 (1986)”; See House v. Bell, 547
U.S. 518, 536 (2006). To show sufficient “cause,
” Petitioner must point to “some objective factor
external to the defense” that prevented him from
raising the issue in his first appeal. Murray ...