Elgene Porter v. Kevin Genovese, 676 F. App'x 428

Background

In 2006 masked intruders invaded a Smyrna, Tennessee home, bound a mother and her 2-year-old, ransacked the house, and the adult victim was repeatedly sexually assaulted; Porter was identified via confession and convicted of multiple crimes and sentenced to 42 years.
Convictions included conspiracy to commit aggravated burglary, aggravated burglary, attempted aggravated robbery, aggravated rape, and two counts of aggravated kidnapping (one for the mother, one for the child).
Porter sought post-conviction relief in Tennessee courts (appointed counsel omitted several pro se claims); state courts denied relief and the Tennessee Supreme Court declined review.
Porter filed a § 2254 habeas petition advancing (inter alia) two ineffective-assistance claims: (a) trial/appellate counsel failed to argue that the aggravated kidnapping convictions should merge under Tennessee due-process principles (Anthony/Dixon line); and (b) counsel failed to investigate/pursue relief based on an alleged exculpatory remark by the victim at sentencing.
The district court found those claims procedurally defaulted and that Martinez/Trevino did not excuse the defaults; the Sixth Circuit affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for not arguing kidnapping convictions should merge under Anthony/Dixon	Porter: counsel should have argued kidnapping was incidental to robbery/rape (merger) under Tennessee due process, so convictions should not be separate	State: the restraint (duct-taping, binding hands/feet/mouth, prolonged confinement, armed guard) exceeded what was necessary and satisfied Dixon’s two-prong test	Held: No substantial ineffective-assistance claim as to the mother’s kidnapping; the restraint went beyond that necessary and satisfied Dixon; claim procedurally defaulted and not saved by Martinez/Trevino
Whether counsel was ineffective for failing to pursue alleged exculpatory remark (coram nobis/new evidence) after sentencing	Porter: victim allegedly said at sentencing that Porter was not the rapist after hearing his voice; counsel should have stayed appeal and pursued coram nobis/new-trial relief	State: claim was framed as ineffective-assistance-of-appellate-counsel and thus falls outside Martinez/Trevino; coram nobis is extraordinary and Porter’s counsel raised the matter at the trial level but did not pursue it on appeal	Held: Claim treated as appellate-counsel claim and barred by Hodges; Martinez/Trevino’s exception does not extend to ineffective assistance of appellate counsel, so procedural default not excused

Key Cases Cited

State v. Anthony, 817 S.W.2d 299 (Tenn. 1991) (articulated due-process concern that kidnapping convictions may be invalid when restraint is incidental to other felonies)
State v. Dixon, 957 S.W.2d 532 (Tenn. 1997) (refined Anthony: two-prong test—(1) confinement beyond that necessary to consummate the felony and (2) whether additional restraint prevented help, reduced detection risk, or increased danger)
State v. Richardson, 251 S.W.3d 438 (Tenn. 2008) (applied Dixon; emphasized fact-driven inquiry and relevant factors like duration, distance, and use of force)
State v. Fuller, 172 S.W.3d 533 (Tenn. 2005) (confinement after robbery completed satisfied Dixon)
State v. White, 362 S.W.3d 559 (Tenn. 2012) (later decision impacting Anthony/Dixon jurisprudence; held jury should determine statutory elements—court noted not retroactive to Porter)
Martinez v. Ryan, 566 U.S. 1 (2012) (narrowly allows ineffective-assistance-of-post-conviction-counsel to establish cause for procedural default of trial-ineffectiveness claims under limited conditions)
Trevino v. Thaler, 569 U.S. 413 (2013) (extends Martinez where state procedural framework makes meaningful direct appeal of IATC unlikely)
Strickland v. Washington, 466 U.S. 668 (1984) (established deficient-performance and prejudice test for ineffective-assistance claims)
Coleman v. Thompson, 501 U.S. 722 (1991) (state procedural default doctrine; ordinarily bars federal review)
Hodges v. Colson, 727 F.3d 517 (6th Cir. 2013) (circuit rule that Martinez exception does not extend to ineffective-assistance-of-appellate-counsel claims)
Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency-of-evidence claims)
Miller-El v. Cockrell, 537 U.S. 322 (2003) (standard for determining whether a claim is "substantial" under COA/Martinez)
Harrington v. Richter, 562 U.S. 86 (2011) (presumption of reasonable professional assistance under Strickland)