685 F.3d 631 (6th Cir. 2012), 10-5242, Rayner v. Mills

Docket Nº:10-5242.
Citation:685 F.3d 631
Opinion Judge:CARR, District Judge.
Party Name:Floyd Earl RAYNER III, Petitioner-Appellant, v. David MILLS, Warden, Respondent-Appellee.
Attorney:C. Douglas Thoresen, Andrew Brandon, Office of the Federal Public Defender, Nashville, Tennessee, for Appellant. Deshea Dulany Faughn, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellee.
Judge Panel:Before: COLE and STRANCH, Circuit Judges; CARR, District Judge. [*]
Case Date:July 12, 2012
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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685 F.3d 631 (6th Cir. 2012)

Floyd Earl RAYNER III, Petitioner-Appellant,


David MILLS, Warden, Respondent-Appellee.

No. 10-5242.

United States Court of Appeals, Sixth Circuit.

July 12, 2012

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C. Douglas Thoresen, Andrew Brandon, Office of the Federal Public Defender, Nashville, Tennessee, for Appellant.

Deshea Dulany Faughn, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellee.

Before: COLE and STRANCH, Circuit Judges; CARR, District Judge. [*]


CARR, District Judge.

Petitioner Floyd Earl Rayner, III, appeals the district court's denial of his petition for habeas corpus. The district court granted a Certificate of Appealability to review Rayner's ineffective assistance of counsel claims and, finding them meritless, we AFFIRM the judgment of the district court.


On January 10, 2001, a Tennessee jury convicted Rayner of five counts of rape of a child and five counts of aggravated sexual battery. (Memorandum, Dist Ct. Docket No. 90, at 2.) The trial court sentenced petitioner to an effective term of fifty-one years in prison: twenty-one years for each rape of a child conviction, and nine years for each aggravated sexual battery conviction, with two of the rape counts and one of the sexual battery counts to run consecutively, and the remainder to run concurrently. ( Id. )

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In December 1999, Rayner's daughter reported to a family friend that she had been sexually abused. ( Id. at 4.) At trial, the victim testified that Rayner had touched her " private parts" with his hands and mouth, on more than one occasion. ( Id. ) She also said that Rayner penetrated her anus with his penis. ( Id. ) The victim testified that she asked Rayner to stop, because the act hurt her. ( Id. ) The victim also testified that Rayner made her fondle his penis and perform oral sex. ( Id. ) The victim stated that these acts occurred multiple times. ( Id. at 4-5.)

At trial, the prosecution presented medical proof that the victim suffered from trichomoniasis, a sexually transmitted disease. ( Id. at 5.) No evidence was presented that Rayner had trichomoniasis. ( Id. at 10.) On cross-examination, defense counsel pointed out that trichomoniasis could be transmitted in ways not involving sexual contact. ( Id. ) Defense counsel's strategy focused on the theory that the victim was lying about the abuse. ( Id. )

Following his conviction, Rayner appealed to the Tennessee Court of Criminal Appeals, claiming the trial court breached its duty as a " thirteenth juror," failed to apply mitigating factors to Rayner's sentence, and erred in ordering consecutive service of some of his sentences. State v. Rayner, No. M2001-00971-CCA-R3-CD, 2002 WL 1336654, *1 (Tenn.Crim.App. June 19, 2002). The appellate court affirmed Rayner's convictions, and denied review of the sentencing issues due to Rayner's failure to include the pre-sentence report in the record on appeal. Id. at *4. The Tennessee Supreme Court denied his application for review. (Memorandum, Dist Ct. Docket No. 90, at 2).

On state collateral review, Rayner brought a claim for the ineffective assistance of counsel, alleging that his counsel failed to investigate the case properly, call coworkers and neighbors as witnesses, pursue a potential defense that Rayner did not have trichomoniasis, hire an investigator, and provide the pre-sentence report for his record on direct appeal. ( Id. at 3.) The trial court denied the petition, and the Tennessee Court of Criminal Appeals affirmed. Rayner v. State, No. M2005-01672-CCA-R3-PC, 2006 WL 2000701, *2 (Tenn.Crim.App. July 19, 2006). The Tennessee Supreme Court denied his application for review. (Memorandum, Dist Ct. Docket No. 90, at 3.)

Rayner filed a petition for the writ of habeas corpus in the Eastern District of Tennessee, later transferred to the Middle District of Tennessee, advancing seven grounds for relief: prosecutorial misconduct, ineffective assistance of trial counsel, ineffective assistance of appellate counsel, insufficiency of the evidence, actual innocence, trial court's failure to apply mitigating factors to his sentence, and that his sentence was unlawfully enhanced by facts not found by a jury. ( Id. at 1.) After holding an evidentiary hearing, the district court denied Rayner's petition, but granted a Certificate of Appealability (" COA" ) on the ineffective assistance of counsel claims. ( See id. at 24-25; Order, Dist. Ct. Docket No. 91.) Rayner timely appealed.1

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A. Standard of Review

In reviewing a decision denying habeas corpus relief, this Court reviews the district court's legal conclusions de novo, and its factual findings for clear error. Lucas v. O'Dea, 179 F.3d 412, 416 (6th Cir.1999). Rayner filed his habeas petition in November 2006, after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ), so AEDPA and the case law interpreting it govern this Court's review of Rayner's claims. See 28 U.S.C. § 2254(d).

Before this Court may consider a claim for habeas relief on the merits, a petitioner must have " exhausted the remedies available in the courts of the State." Id. § 2254(b)(1)(A). Once a court finds that the petitioner has exhausted his claims, it proceeds to the merits of the claims. Section 2254(d) imposes the following standard of review in a habeas case:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Id. § 2254(d).

A decision is " contrary to" clearly established federal law " if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A decision involves an " unreasonable application" of clearly established federal law " if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.

Each of Rayner's claims asserts that he received ineffective assistance of counsel. Under the familiar test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a petitioner must satisfy two prongs— deficiency and prejudice— to succeed in an ineffective assistance claim. In order to demonstrate deficiency, a petitioner must show his " counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052. To demonstrate prejudice, a petitioner must show " there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. The Supreme Court has defined a " reasonable probability" as one that is " sufficient to undermine confidence in the outcome." Id.

The parties dispute whether a habeas court must afford AEDPA deference to a Strickland prong not reached by the state court when the state court denies a petitioner's ineffective assistance claim entirely on the other prong. In Wiggins v. Smith, the Supreme Court noted that its " review is not circumscribed by a state court conclusion with respect to prejudice, as neither of the state courts below reached this prong of the Strickland analysis."

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539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); see also Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (citing Wiggins, 539 U.S. at 534, 123 S.Ct. 2527) (reviewing prejudice de novo when state courts denied claim entirely on deficiency); Porter v. McCollum, __ U.S. __, 130 S.Ct. 447, 452, 175 L.Ed.2d 398 (2009) (per curiam) (citing Rompilla, 545 U.S. at 390, 125 S.Ct. 2456) (reviewing deficiency de novo when state court denied claim entirely on prejudice). The Supreme Court's more recent decision in Harrington v. Richter, __ U.S. __, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), addressed a different circumstance, a state court's summary dismissal of an ineffective assistance of counsel claim that did not address either Strickland prong. The Supreme Court explained the appropriate standard of review as follows:

Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief. This is so whether or not the state court reveals which of the elements in a multipart claim it found insufficient, for § 2254(d) applies when a " claim," not a component of one, has been adjudicated.

Id. at 784.

There is little doubt that this language stands for the proposition that, when there is no explanation as to either Strickland prong, a habeas court must afford both prongs AEDPA deference after " determin[ing] what arguments or theories ... could have supported [ ] the state...

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