JOHNNY O. CLARK, Petitioner-Appellant, v. ROBERT WALLER, Respondent-Appellee.
No. 04-6373
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
June 25, 2007
07a0241p.06
BOGGS, Chief Judge; and BATCHELDER and GRIFFIN, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. Argued: March 8, 2007. Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 03-02951—J. Daniel Breen, District Judge.
COUNSEL
OPINION
BOGGS, Chief Judge. Johnny O. Clark appeals the district court’s summary dismissal of his petition for a writ of habeas corpus. Clark was convicted of first-degree murder and, after exhausting his state post-conviction and appellate remedies, petitioned the district court under
I
According to the opinion of the Tennessee Court of Criminal Appeals on direct appeal of his conviction, early in the morning of March 15, 1995, Clark entered the house of his mother, where he had usually lived until recent altercations between him and other residents, to retrieve some belongings. Tony Valentine, Clark’s brother, asked Clark to leave when he appeared to be seeking a confrontation with Deron Cathey, another guest in the house. Valentine ultimately escorted Clark out of the house. A few hours later Clark returned and knocked on the door, at which point his mother allowed him to remain. Valentine awoke shortly thereafter to the sound of gunfire, and another houseguest, Mose Dire, observed Clark shooting Cathey, who was on a bed, unarmed and pleading for his life. At trial, Clark testified that Cathey had threatened him as he was retrieving belongings from a dresser, walked to the part of the house where guns were kept, and then approached him again, at which point Clark began shooting in self-defense. He further testified that three days earlier, Cathey had chased him from the house brandishing a weapon. Cathey was pronounced dead a few hours later, from multiple gunshot wounds. See State v. Clark, 1998 WL 170141 at *1-*2 (Tenn. Crim. App.).
After conviction by a jury, Clark appealed to the Tennessee Court of Criminal Appeals, claiming that the evidence was insufficient to convict him of first-degree
Clark’s trial counsel testified that he had attempted to locate and interview Lockett, along with all others who had been present at the house at the time of the shooting. He testified that his unsuccessful efforts included two visits to Lockett’s house, sending investigators to the house, speaking to individuals of Lockett’s acquaintance, and twice issuing subpoenas for him. He testified that he believed the state had also subpoenaed Lockett. During the course of his investigations, he learned that Lockett was elderly, and possibly experiencing “some problem with his mental thinking.” He had been informed that Lockett had suffered a head injury that put him in the hospital, and claimed to have concluded that Lockett would not make a good defense witness. He testified that he kept Clark informed of the Lockett situation, and that Clark chose not to seek a continuance.
Clark’s petition for post-conviction relief was denied after an evidentiary hearing. On appeal of this denial to the Tennessee Court of Criminal Appeals, Clark raised for the first time his contention that trial counsel had also been ineffective for his failure to call Jack Wafford, Clark’s cousin, who he claimed would have testified that Cathey had showed him a gun at some point before the shooting, intimating that it was meant for Clark. The trial court had ruled that Wafford could testify for the limited purpose of establishing Cathey as the initial aggressor. Before he was called to the stand, however, the state objected, indicating that it had asked Clark’s counsel for a recording of a defense interview with Wafford (who had claimed that the interview had been taped), but that counsel had been unable to find it. Trial counsel responded by claiming that his investigator said the interview had not in fact been taped, but that he would nevertheless not be calling the witness to testify. Clark claimed on appeal that his counsel had withdrawn Wafford as a witness because of his deficiency in failing to provide the required materials. The Court of Criminal Appeals held that the claim had been waived by his failure to present it in his post-conviction petition, and further observed that, even if it had not been waived, it would have failed on the merits because Clark had made no showing of a likelihood of a different outcome had Wafford been permitted to testify. The Court of Criminal Appeals affirmed the post-conviction court’s denial of relief. Clark v. State, 2002 WL 1841630 at *10. Permission to appeal to the state supreme court was denied.
II
Whether the district court erred in summarily dismissing Clark’s petition is a question of law that we review de novo. Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004). Clark concedes that state court factual findings are presumed to be correct in a federal habeas proceeding, and that this presumption can only be overcome with “clear and convincing evidence.”
Clark’s argument, essentially, is that if the district court needs to go outside the four corners of the petition (and its attachments) in order to dismiss it—if, in other words, the petition facially states a claim—it can not do so summarily. In particular, he contends that because he has raised factual questions, the district court was required to review the state court record directly, rather than rely on the state courts’ factual determinations.
This question does not appear to have been squarely addressed by our precedents. Clark relies exclusively on Loveday v. Davis for the proposition that, as he puts it, where a state court’s factual findings are in question, “[s]ummary dismissal of the petition without examination of the record would be improper.” Loveday, 697 F.2d 135, 138 (6th Cir. 1983). In fact, Loveday was in no way so expansive, and, read correctly, its holding and the reasoning behind it point to a much different conclusion.
Loveday was decided under the presumption of correctness accorded to state court factual findings codified in the then-current version of
Since Loveday was decided, the applicable level of deference to state fact-findings has, if anything, become greater under the provisions of AEDPA. See
Here, Clark makes no such claim. Though he takes issue with the state court’s factual conclusions, he does not offer any specific dispute with the evidence, as summarized by the state courts, on which those conclusions were based. For example, as part of his ineffective assistance claim, Clark asserts that his counsel “did not vigorously pursue interviewing witnesses whose testimony could have assisted in developing [his] defense . . . .” He does not, however, allege any way in which the factual record would contradict the state court’s opposite conclusion that trial counsel’s efforts were sufficient. Indeed, the most specific factual dispute Clark offers in his brief is an alleged uncertainty concerning the precise number of subpoenas that had been issued for Lockett. Setting aside the question whether such a detail is in any way material to his claim, Clark crucially fails to take issue with the accuracy of the state court’s summary of his counsel’s testimony on this question, or suggest any omission from the summary of testimony in the record that might bear upon it. In other words, he does not quarrel with the state court’s recitation of the relevant evidence, nor does he point to gaps in it—either of which might indeed require a review of the transcript —but only disagrees with the conclusions the state court drew from the evidence; and he gives no reason that the district court would have benefitted from reviewing the transcript in evaluating
the district court need not examine the trial records if two conditions are satisfied: (1) the state court opinions summarize the trial testimony or relevant facts; and
(2) the petitioner does not quarrel with that summary and instead contends only that the trier of fact should have reached a different conclusion.
Small v. Endicott, 998 F.2d 411, 414 (7th Cir. 1993) (citing Davis, 671 F.2d at 1057). Given that this court has rejected a rule requiring review of the transcript in all habeas cases, Nash, 437 F.3d at 525, the conditions announced in Small offer an appropriate standard, consistent with Loveday and its reasoning, for determining when such review is necessary. Under such a standard, it was not necessary here. Accordingly, the district court did not err in failing to review the transcripts of the state proceedings before summarily dismissing Clark’s petition.
III
Clark contends that, even without recourse to the full state court transcript, the district court erred in dismissing his ineffective assistance claims. He argues that the state court was incorrect in its determination that the testimony of the two uncalled witnesses—Lockett and Wafford—would not have affected the outcome of his trial.2 In addition, he claims that his post-conviction counsel was constitutionally ineffective for failing to raise the ineffectiveness of his trial counsel with respect to Wafford, in order to excuse his procedural default of that claim in state proceedings, under the cause and prejudice analysis of Coleman v. Thompson, 501 U.S. 722 (1991).3
A
The Tennessee Court of Criminal Appeals considered Clark’s claim of ineffective assistance at trial waived with respect
In fact, Coleman specifically left open the question of whether there might be an exception to the Finley rule “in those cases where state collateral review is the first place a prisoner can present a challenge . . . ,” ibid. Tennessee disfavors ineffective assistance claims on initial direct appeal of right (where Clark would have had a right to effective counsel, Douglas v. California, 372 U.S. 353 (1963)), considering their fact-intensive nature to be more appropriate to post-conviction proceedings. See, e.g., State v. Carruthers, 35 S.W.3d 516, 551 (Tenn. 2000). But while Coleman itself does not exclude the possibility of ineffective post-trial counsel serving as a cause for a procedural default of a trial-ineffectiveness claim under these circumstances, this court’s application of it appears to do so. See Abdus-Samad v. Bell, 420 F.3d 614, 632 (6th Cir. 2005); Gulertekin v. Tinnelman-Cooper, 340 F.3d 415, 425 (6th Cir. 2003).
Furthermore, Clark is clearly unable to demonstrate actual prejudice from his procedural default, the second element required under Coleman to excuse it. Insofar as the effect of the default was to bar his claim of ineffective assistance with respect to Wafford, it could only have resulted in actual prejudice if that underlying claim were itself meritorious. It is not. To prevail on the underlying claim, Clark would in turn have to prove not only that his trial counsel’s performance was constitutionally deficient in failing to put Wafford on the stand, but that this failure in turn resulted in prejudice. Strickland, 466 U.S. at 694 (“defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”)
Whether or not Clark’s allegation—that trial counsel declined to call Wafford to cover up his own failure to comply with disclosure requirements—might amount to deficient performance, Clark has offered no reason to suggest any probability that, had Wafford testified, the outcome of his trial would have been different. Indeed, he has offered no evidence, beyond his assertions, to prove what the content of Wafford’s testimony would have been; a fortiori, he cannot show that he was prejudiced by its omission. See Stewart v. Wolfenbarger, 468 F.3d 338, 353 (6th Cir. 2006). And even accepting Clark’s assertion as to Wafford’s testimony, he offers no basis to conclude that, in light of the other evidence presented at trial, it would likely have altered the outcome. Unable to prove prejudice resulting from the failure to call Wafford, Clark could not prevail on this ineffectiveness claim whatever the deficiency of his attorney in choosing that course of action. Strickland, 466 U.S. at 697 (“a court need not determine whether counsel’s performance was deficient before examining the prejudice
B
In addition to this defaulted claim, Clark properly raised a similar claim with respect to his trial counsel’s failure to call or obtain the testimony of Felix Lockett. This claim is equally without merit. Indeed, his argument is nothing more than the assertion, based on the content of the purported affidavit he unsuccessfully sought to introduce in the state post-conviction proceedings, that “Felix Lockett’s testimony clearly would have aided [his] defense”—a claim considerably weaker than a demonstration of a likelihood of a different outcome at trial. He provides no basis on which to conclude that failure to call a possibly favorable witness amounts to constitutionally deficient performance, where evidence supported the conclusion that counsel had investigated and made a strategic choice. See Strickland, 466 U.S. at 690 (“[s]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable”). He offers no reason to believe that the state court’s refusal to consider the purported affidavit was incorrect. See Stewart, 468 F.3d at 353 (state court need not consider inadmissible evidence in deciding ineffective assistance claim).4 And, even accepting arguendo the purported affidavit as reflecting Lockett’s likely testimony, in light of the other evidence presented at trial this does not, standing alone, provide a basis for concluding that the outcome likely would have been different. Clark contends that his counsel’s attempts to secure Lockett’s testimony were not as thorough as the state court concluded they were (though, as discussed above, he offers nothing more than speculation to that effect), but even if he could demonstrate that his counsel’s performance were constitutionally deficient, here, as in the case of Wafford, he has offered no demonstration of prejudice. Accordingly, he has not made out a claim of ineffective assistance of counsel here.
IV
For the foregoing reasons, the district court’s denial of Clark’s petition is AFFIRMED.