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Avery v. Genovese

United States District Court, M.D. Tennessee, Nashville Division

January 9, 2020

KEVIN GENOVESE, Warden, Respondent.



         Frederick Alexander Avery, a state prisoner, filed a pro se petition for the writ of habeas corpus under 28 U.S.C. § 2254 (Doc. No. 1) and an amended petition (Doc. No. 22). The respondent filed an answer (Doc. No. 38) and the petitioner filed a reply (Doc. No. 39), followed by two supplements (Doc. Nos. 43 at 44). For the following reasons, the petitioner is not entitled to relief under Section 2254 and this action will be dismissed.

         I. Background

         A Davidson County jury convicted the petitioner and his brother of aggravated robbery, especially aggravated robbery, reckless endangerment, and attempted second degree murder. (Doc. No. 25-1 at 60-63.) The petitioner received sentences of life without the possibility of parole and 20 years' imprisonment, to be served consecutively. (Id.) The Tennessee Court of Criminal Appeals (“TCCA”) affirmed. State v. Avery, No. M2008-01809-CCA-R3-CD, 2009 WL 4724430 (Tenn. Crim. App. Dec. 10, 2009). The petitioner filed a pro se application for permission to appeal to the Tennessee Supreme Court (“Rule 11 Appeal”) (Doc. No. 25-11), and later testified that “it was dismissed because he was represented by counsel.” Avery v. State, No. M2011-02493-CCA- R3-PC, 2013 WL 451867, at *1 (Tenn. Crim. App. Feb. 6, 2013). The petitioner's counsel also filed a Rule 11 Appeal, and the Supreme Court denied it as untimely. (Doc. No. 25-12.)

         The same counsel represented the petitioner at trial, on direct appeal, and in these Rule 11 Appeal proceedings. For clarity, the court will refer to this attorney as “trial counsel.”

         The petitioner then filed a pro se petition for post-conviction relief (Doc. No. 25-13 at 39- 53), and the post-conviction court appointed counsel (id. at 56-58). The court will refer to this attorney as “post-conviction counsel.”

         Post-conviction counsel filed an amended petition. (Id. at 59-62.) After an evidentiary hearing, due to trial counsel's admitted miscalculation of the Rule 11 Appeal deadline, the post-conviction court reopened the petitioner's direct appeal to allow him to file a delayed Rule 11 Appeal.[1] (Doc. No. 25-13 at 74.) Post-conviction counsel represented the petitioner in these delayed Rule 11 Appeal proceedings. (Doc. No. 25-19 (Rule 11 Appeal brief).) And in February 2012, the Supreme Court denied the petitioner's Rule 11 Appeal. (Doc. No. 25-21.)

         With the petitioner's post-conviction claims still pending, the proceedings returned to the post-conviction court. At a hearing in March 2012, “the petitioner waived any conflict of interest with his current counsel and advised the court that he had chosen not to amend the post-conviction petition regarding any Rule 11 grounds.” Avery v. State, No. M2014-02427-CCA-R3-PC, 2015 WL 6768884, at *4 (Tenn. Crim. App. Nov. 6, 2015). Over a year and one-half later, however, the petitioner filed a pro se motion requesting the appointment of new post-conviction counsel and the opportunity to amend the post-conviction petition. (Doc. No. 25-22 at 70.) The post-conviction court denied these requests, as well as the petitioner's claims. (Id. at 73-74 & n.2.)

         Post-conviction counsel continued to represent the petitioner on appeal. (Doc. No. 25-23 (post-conviction appeal brief).) The TCCA affirmed the denial of the petition, Avery, 2015 WL 6768884, and the Tennessee Supreme Court denied discretionary review. (Doc. No. 25-28.)

         II. Claims

         The petitioner asserts three claims here. First, he asserts that the trial court erred by imposing an indeterminate sentence, which is illegal under the Tennessee Rules of Criminal Procedure and Tennessee law. (Doc. No. 1 at 4; Doc. No. 22 at 3.) Second, the petitioner asserts that he received ineffective assistance of counsel, stating that his pro se efforts were “denied” because his attorney abandoned him without withdrawing as attorney of record. (Id. at 5.)[2] And third, the petitioner asserts that post-conviction counsel was ineffective because she was reprimanded “by the Board for [the petitioner's] allegations of malicious prosecution[, ] abuse of process, abandonment, [and] filing groundless appeals without [his] consent.” (Doc. No. 22 at 3.)[3]

         III. Standard of Review

         Federal courts have the authority to grant habeas relief to state prisoners under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Harrington v. Richter, 562 U.S. 86, 97 (2011). Under AEDPA, a claim “adjudicated on the merits” in state court cannot be the basis for federal relief unless the state court's decision was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) “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). “The question under AEDPA, ” therefore, “is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)).

         The demanding review of claims rejected on the merits in state court, however, is ordinarily only available to petitioners who “exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). In Tennessee, a petitioner is “deemed to have exhausted all available state remedies for [a] claim” when it is presented to the Tennessee Court of Criminal Appeals. Adams v. Holland, 330 F.3d 398, 402 (6th Cir. 2003) (quoting Tenn. Sup. Ct. R. 39). “To be properly exhausted, each claim must have been ‘fairly presented' to the state courts, ” meaning that the petitioner presented “the same claim under the same theory . . . to the state courts.” Wagner v. Smith, 581 F.3d 410, 414, 417 (6th Cir. 2009) (citations omitted).

         The procedural default doctrine is “an important ‘corollary' to the exhaustion requirement, ” under which “a federal court may not review federal claims that . . . the state court denied based on an adequate and independent state procedural rule.” Davila v. Davis, 137 S.Ct. 2058, 2064 (2017) (citations omitted). A claim also may be “technically exhausted, yet procedurally defaulted, ” where “a petitioner fails to present a claim in state court, but that remedy is no longer available to him.” Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015) (citing Jones v. Bagley, 696 F.3d 475, 483-84 (6th Cir. 2012)).

         To gain review of a procedurally defaulted claim, a petitioner must “establish ‘cause' and ‘prejudice,' or a ‘manifest miscarriage of justice.'” Middlebrooks v. Carpenter, 843 F.3d 1127, 1134 (6th Cir. 2016) (citing Sutton v. Carpenter, 745 F.3d 787, 790-91 (6th Cir. 2014)). Cause may be established by “show[ing] that some objective factor external to the defense”-a factor that “cannot be fairly attributed to” the petitioner-“impeded counsel's efforts to comply with the State's procedural rule.” Davila, 137 S.Ct. at 2065 (citations omitted). To establish prejudice, “a petitioner must show not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Garcia-Dorantes v. Warren, 801 F.3d 584, 598 (6th Cir. 2015) (quoting Hollis v. Davis, 941 F.2d 1471, 1480 (11th Cir. 1991)) (internal quotation marks omitted). There is also “a ...

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