United States District Court, M.D. Tennessee, Nashville Division
FREDERICK A. AVERY, Petitioner,
KEVIN GENOVESE, Warden, Respondent.
A. TRAUGER, UNITED STATES DISTRICT JUDGE
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.
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.)
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
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
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. (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.)
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.)
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.)
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.) 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.)
Standard of Review
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)).
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
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.
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 ...