Porter v. Johnson

ELGENE KENTAY PORTER, #412934, Petitioner, v. DEBRA JOHNSON, Warden, Respondent.

Case No. 3:14-cv-01798

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

February 16, 2016

Judge Campbell

MEMORANDUM OPINION

The Court previously entered an order and memorandum denying relief as to all but two of the claims asserted in petitioner Elgene Porter's petition for the writ of habeas corpus under 28 U.S.C. § 2254. The Court determined that additional briefing would assist the Court in resolving the two remaining claims, denominated by the Court as Claims 27 and 33,¹ specifically on the issues of whether these claims (or portions thereof) were procedurally defaulted and what standard of review applies to them. The Court therefore appointed counsel to represent the petitioner and set a rebriefing schedule. The petitioner, through appointed counsel, has now filed a supplemental brief asserting that relief should be granted on the basis of the two remaining claims (ECF No. 59), and the respondent has submitted a supplemental brief opposing relief (ECF No. 65). The petitioner, with the Court's permission, filed a reply brief (ECF No. 68).

The matter having been more fully explored, the Court finds, for the reasons set forth herein, that the petitioner is not entitled to relief and that an evidentiary hearing is not necessary. See Smith v. United States, 348 F.3d 545, 550 (6th Cir. 2003) (an evidentiary hearing is not required when the record conclusively shows that the petitioner is not entitled to relief). The Court will therefore dismiss the remaining claims and enter judgment in favor of the respondent.

I. PROCEDURAL BACKGROUND

In July 2009, after being found guilty at jury trial, the petitioner was sentenced to 3 years of incarceration for conspiracy to commit aggravated burglary, 5 years for aggravated burglary, 5 years forattempted aggravated robbery, and 22 years for aggravated rape, all to be served concurrently; he received 10-year sentences on each of two counts of aggravated kidnapping, to be served consecutively to each other and to the remainder of the sentence, for a total effective sentence of 42 years. (ECF No. 45-2, at 38-44 (Judgments).)

At a hearing on the petitioner's motion for a new trial, trial counsel brought to the trial court's attention a letter he had received from the petitioner's mother, just a few days prior to the hearing, in which she stated that "witnesses willing to testify" had overheard the rape victim tell her husband, when she heard the petitioner testify during the sentencing hearing, that the petitioner was not the person who raped her. (See ECF No. 45-9, at 3 (Letter to counsel).) Trial counsel requested a hearing to consider the evidence referenced by the letter. The trial court accepted a copy of the letter into evidence and, after the prosecutor addressed the merits of the claim based on this "new evidence," denied the request for a separate hearing and denied relief based on the letter. (ECF No. 45-8, at 19 (Motion for New Trial Hr'g Tr.).) The issue was not raised in the direct appeal.

The Tennessee Court of Criminal Appeals affirmed the conviction and sentence. State v. Porter ("Porter I"), No. M2009-02443-CCA-R3-CD, 2011 WL 915673 (Tenn. Ct. Crim. App. March 14, 2011), perm. appeal denied (Tenn. May 25, 2011).

The petitioner filed a pro se petition for post-conviction relief that incorporated, in an attachment to the petition entitled "Additional Grounds," seventeen separate grounds for relief on the basis of ineffective assistance of trial and appellate counsel. (ECF No. 45-19, at 3-54.) Appointed counsel later filed an amended petition that asserted eighteen other claims of ineffective assistance of trial counsel. (ECF No. 45-19, at 73-77.) The amended petition did not expressly or implicitly cross-reference or adopt the claims set forth in the original petition. After a hearing at which only the claims raised by counsel were addressed, the trial court denied relief, again referring specifically only to those claims raised by appointed counsel in the amended petition and not to any of the claims asserted in petitioner's original pro se petition.

That decision was affirmed on appeal as well. Porter v. State ("Porter II"), No. M2012-01139-CCA-R3-PC, 2013 WL 1197730 (Tenn. Ct. Crim. App. March 26, 2013), perm. appeal denied (Tenn. Sept. 11, 2013). As discussed in more detail below, the petitioner then filed a petition to rehear under Rule 39 of the Tennessee Rules of Appellate Procedure (ECF No. 45-24), which the Tennessee Court of Criminal Appeals denied. (ECFNo. 45-25.) The Tennessee Supreme Court denied review. (ECF No. 45-27.)

The petitioner thereafter filed his timely § 2254 petition in this Court. As previously noted, the Court entered an order denying most of the petitioner's claims but appointing counsel for the petitioner and requesting additional briefing from both parties on two of the petitioner's claims.

II. STANDARD OF REVIEW

The petition in this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). AEDPA imposes significant limitations on the federal courts' authority to issue writs of habeas corpus. Most notably, it forbids a federal court from granting habeas relief with respect to a "claim that was adjudicated on the merits in State court proceedings," unless the state-court decision resulted in a decision that was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or 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).

In addition to limiting the federal courts' review of claims that were adjudicated on the merits in the state courts, AEDPA generally precludes habeas review altogether of claims that were not properly exhausted in the state courts or were procedurally barred by the state courts, except in very limited circumstances. Specifically, section 2254(b)(1) provides that a federal court may not award habeas relief to an applicant in state custody "unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State," "there is an absence of available State corrective process," or "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1). In order to satisfy § 2254(b)'s exhaustion requirement, the prisoner must have "fairly presented" to the state court the "substance of a federal habeas corpus claim." Picard v. Connor, 404 U.S. 270, 275, 278 (1971); accord Anderson v. Harless, 459 U.S. 4, 6 (1982). Additionally, the state court must have had a "fair opportunity to apply controlling legal principles to the facts bearing upon [the] constitutional claim." Anderson, 459 U.S. at 6 (internal quotation marks omitted). If there remains a remedy under state law that a petitioner has not yet pursued, exhaustion has not occurred and the federal habeas court cannot entertain the merits of the claim. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).

When a habeas court finds a claim to be unexhausted, it can, for good cause, stay the action and permit the petitioner to present his unexhausted claim to state court and then return to federal court for reviewof his perfected petition. Rhines v. Weber, 544 U.S. 269, 277 (2005). The court need not wait for exhaustion, however, if it determines that a return to state court would be futile. See id. ("[E]ven if a petitioner had good cause for that failure [to exhaust claims in state court], the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless."); see also 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State").

Even where a state prisoner has exhausted available state-court remedies, a federal court may not consider "contentions of federal law which are not resolved on the merits in the state proceeding due to [the petitioner's] failure to raise them as required by state procedure." Wainwright v. Sykes, 433 U.S. 72, 87 (1977). In addition, if a petitioner failed to fairly present a particular federal habeas claim to the state courts but has no remaining avenue available for doing so under state law, then the claim is deemed to be exhausted but procedurally defaulted. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Rust, 17 F.3d at 160.

If a prisoner defaulted a federal claim in state court, review by the federal court is completely barred unless the petitioner "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim would result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991).

A petitioner can establish the requisite "cause" in two ways. First, a petitioner may "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Objective impediments include an unavailable claim or interference by officials that made compliance impracticable. Id. Second, constitutionally ineffective assistance of counsel constitutes cause. Id. at 488-89. Generally, however, if a petitioner asserts ineffective assistance of counsel ("IAC"), whether at trial or on appeal, as cause for a default, that IAC claim must itself have been presented to the state courts as an independent claim before it may be used to establish cause. Id. If the IAC claim was not presented to the state courts in the manner that state law requires, that claim is itself procedurally defaulted and can only be used as cause for the underlying...