McNish v. Westbrooks

149 F. Supp. 3d 847, 2016 WL 755634, 2016 U.S. Dist. LEXIS 22998
CourtDistrict Court, E.D. Tennessee
DecidedFebruary 25, 2016
DocketNo.: 2:00-CV-095-PLR-CLC
StatusPublished
Cited by1 cases

This text of 149 F. Supp. 3d 847 (McNish v. Westbrooks) is published on Counsel Stack Legal Research, covering District Court, E.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McNish v. Westbrooks, 149 F. Supp. 3d 847, 2016 WL 755634, 2016 U.S. Dist. LEXIS 22998 (E.D. Tenn. 2016).

Opinion

MEMORANDUM OPINION

Pamela L. Reeves, UNITED STATES DISTRICT JUDGE

David McNish (“Petitioner”) was sentenced to death by a jury in Carter County, Tennessee, following his 1984 conviction for first-degree murder. Petitioner has exhausted his appeals in the Tennessee Courts, and this Court denied his federal habeas corpus petition' on February 12, 2013 [Docs. 187, 188]. This matter is now before the Court on remand from the Sixth Circuit. After reviewing the supplemental briefs filed by both parties, including supporting affidavits and exhibits from Peti[849]*849tioner, the applicable law, and, where relevant, the record of Petitioner’s underlying conviction and habeas records, the Court will GRANT Petitioner’s motion in part and DENY it in part.

I. Procedural Background1

Petitioner was convicted of first-degree murder, for the April 5, 1983 murder of Gladys Smith, a seventy-year-old widow, and received a sentence of death. The conviction and sentence were affirmed on direct appeal to the Tennessee Court of Criminal Appeals and the Tennessee Supreme Court. See State v. McNish, 727 S.W.2d 490 (Tenn.1987). The United States Supreme Court denied certiorari. McNish v. Tennessee, 484 U.S. 873, 108 S.Ct. 210, 98 L.Ed.2d 161 (1987). Petitioner subsequently filed a petition for post-conviction relief that was denied by the Carter County Criminal Court and the Tennessee Court of Criminal Appeals. See McNish v. State, No. 03C01-9712-CR-00550, 1999 WL 604436 (Tenn.Crim.App. Aug. 12, 1999), perm. app. denied Mar. 6, 2000.

Petitioner filed a habeas corpus petition that the Court denied on February 12, 2013 [Docs. 187, 188]. In reaching this decision, the Court found that Petitioner had procedurally defaulted some of his ineffective assistance of' trial counsel claims by failing to properly exhaust them in the state proceedings [Doc. 187]. The Court also denied a certificate of appeala-bility on Petitioner’s claims. [Doc. 188]. Petitioner next filed a motion to alter judgment [Doc. 189], which the Court denied on May 30, 2013 [Doc. 194]. Petitioner appealed the Court’s denial of his habeas petition to the Sixth Circuit. Following the Supreme Court’s decision in Martinez v. Ryan, — U.S. —, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) and Trevino v. Thaler, — U.S. —, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), Petitioner filed a motion to remand this case that the Sixth Circuit granted [Doc. 196].

The Court ordered both parties to file supplemental briefs on the ineffective assistance of counsel claims affected by Martinez and Trevino addressing why Petitioner is or is not éntitled to relief on those claims [Doc. 197]. Petitioner has filed his supplemental brief [Doc. 202], Respondent' has filed a response [Doc. 208], and Petitioner has filed a reply to Respondent’s response [Doc. 211].

II. Analysis

Petitioner is seeking relief from the Court’s procedural default ruling, arguing that he can establish the requisite cause and prejudice to excuse the procedural default of his ineffective assistance of trial counsel claims because he received ineffective assistance by his post-conviction trial counsel [Doc. 202], Petitioner specifically seeks to reopen the following ineffective assistance of counsel claims: (1) that trial counsel failed to investigate and present petitioner’s social history comprising classic mitigating evidence; and (2) that trial counsel' failed to investigate and present evidence on the absence of premeditation [Doc. 202].

In Martinez, the Supreme Court created “a narrow exception” to the general rule of Coleman v. Thompson that a habeas petitioner cannot use ineffective assistance of collateral review counsel as cause to excuse a procedural default. 501 U.S. 722, 756-57, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The Supreme Court held that where a state’s procedural law requires claims of ineffective assistance of counsel tó be raised in an initial-review collateral [850]*850proceeding, a procedural default will not bar a habeas court from hearing a substantial claim of ineffective assistance of trial counsel if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective. Martinez, 132 S.Ct. at 1320. The Court subsequently expanded .the Martinez exception, holding that where a “state[’s] procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of counsel on direct appeal, [the] holding in Martinez applies.” Trevino, 133 S.Ct. at 1921. The Sixth Circuit has since held that Martinez, as' expanded by Trevino, is applicable in Tennessee. See Sutton v. Carpenter, 745 F.3d 787, 795-96 (6th Cir.2014).

Martinez permits a petitioner to establish cause to excuse a procedural default of an ineffective assistance of trial counsel claim by showing that he received ineffective assistance by post-conviction counsel. See Martinez, 132 S.Ct. at 1320. This holding, however, does not .dispense with the “actual prejudice” requirement established by the Supreme Court in Coleman. 501U.S. at 750, 111 S.Ct. 2546. To successfully establish cause and prejudice under Martinez and Trevino, a petitioner must show a substantial underlying,claim of ineffective assistance of trial counsel.. . See Trevino, 133 S.Ct. at 1918; Martinez, 132 S. Ct. 1318 — 19. “To establish that his claim is ‘substantial,’ a habeas petitioner must ‘show that his post-conviction relief counsel was ineffective under Strickland v. Washington.’ That is, the petitioner must show both that his- post-conviction counsel’s performance was constitutionally deficient and that the petitioner was prejudiced by the deficiency.” Thorne v. Hollway, No. 3:14-CV-0695, 2014 WL 4411680, at *22 (M.D.Tenn. Sept. 8, 2014) (quoting Clabourne v. Ryan, 745 F.3d 362, 376 (9th Cir.2014)).

The Sixth Circuit has directed that a district court reconsidering ineffective assistance of counsel claims under Martinez and Trevino must first address whether the petitioner can demonstrate “(1) the absence or ineffective assistance of his post-conviction counsel and (2) the ‘substantial’ nature of his underlying [inef-féctive assistance of trial counsel claims].” Woolbright v. Crews, 791 F.3d 628, 637 (6th Cir.2015). If the petitioner' demonstrates these first two elements,' the Petitioner has established cause to excuse the procedural default, and the district court must next determine whether the petitioner can establish prejudice from the alleged ineffective assistance of trial counsel. Id. If the petitioner successfully establishes cause and prejudice, the final step is for the district court to evaluate the underlying ineffective assistance of trial counsel claims on the merits. Atkins v. Holloway, 792 F.3d 654

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149 F. Supp. 3d 847, 2016 WL 755634, 2016 U.S. Dist. LEXIS 22998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcnish-v-westbrooks-tned-2016.