Atkins v. Holloway

• Decision Date: 08 July 2015
• Docket Number: No. 12–6498.,12–6498.
• Citation: 792 F.3d 654
• Parties: Howard ATKINS, Petitioner–Appellant, v. James M. HOLLOWAY, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

792 F.3d 654

Howard ATKINS, Petitioner–Appellant

v.James M. HOLLOWAY, Warden, Respondent–Appellee.

No. 12–6498.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 15, 2015.

Decided and Filed: July 8, 2015.

ARGUED:Jeffrey J. Lauderdale, Calfee, Halter & Griswold, LLP, Cleveland, Ohio, for Appellant. Nicholas W. Spangler, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellee. ON BRIEF:Jeffrey J. Lauderdale, Jason J. Blake, Matthew A. Chiricosta, Calfee, Halter & Griswold, LLP, Cleveland, Ohio, for Appellant. Nicholas W. Spangler, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellee.

Before: BOGGS, SILER, and CLAY, Circuit Judges.

OPINION

SILER, Circuit Judge.

Petitioner Howard Atkins appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. For the following reasons, we reverse in part and affirm in part.

FACTUAL AND PROCEDURAL BACKGROUND

In 2000, Atkins, who was sixteen at the time, returned to his mother's and step-father's home after spending a weekend with his father. Atkins's step-father was outside the house and his mother was inside crying. The step-father directed Atkins to “[g]o in there and take care of your mother like you always do.” According to Atkins, his step-father regularly abused him and his mother. Inside the home, Atkins's mother told him that she planned to divorce the step-father and wanted to leave the house soon. She then took a pain pill and went to sleep in Atkins's room.

At some point, Atkins went into the step-father's bedroom, where he was sleeping. Atkins carried a baseball bat and intended to ask the step-father if he would leave the house for a few days so that Atkins and his mother could leave peacefully. He pleaded with his step-father to no avail, and the step-father threatened to kill him. The step-father then reached for what Atkins believed to be a gun in the nightstand. Atkins swung the baseball bat several times at his step-father, killing the step-father by smashing his skull. Atkins cleaned up the blood and moved the mattress with the body outside the house so that his mother would not see it. Atkins called 911. He told the police that he had feared for his life. The police never located a gun inside the home.

The Tipton County Juvenile Court conducted a transfer hearing and ultimately transferred Atkins to Tipton County Circuit Court to be tried as an adult on the charge of first-degree murder. The jury found Atkins guilty of premeditated first-degree murder, and the court sentenced him to life imprisonment with the possibility of parole.

Atkins appealed his conviction on a number of grounds but did not raise any claims of ineffective assistance of counsel (IAC) on direct appeal. The Tennessee Court of Criminal Appeals affirmed Atkins's conviction, and the Tennessee Supreme Court denied Atkins's application for discretionary review.

In 2004, Atkins filed a post-conviction petition in the Tipton County Circuit Court for relief from his conviction or sentence. He raised two instances of alleged IAC relevant to the current appeal: (1) juvenile counsel failed to inform Atkins about his right to testify during the transfer proceedings and that such testimony could not be used against him; and (2) trial counsel failed to object to the prosecutor's extraction of an improper promise from the jury during voir dire. The court conducted a hearing and denied Atkins's petition the same day. Atkins also presented evidence and testimony during the hearing that trial counsel was ineffective by failing to call expert witnesses. The post-conviction trial court interpreted this as an additional claim of ineffective assistance, addressed the claim on the merits, and denied relief. Atkins appealed only two issues, arguing that trial counsel failed to properly litigate the issue of suppression of his statement made at the Sheriff's department and that appellate counsel failed to seek direct appellate review of the juvenile transfer hearing. The Tennessee Court of Criminal Appeals affirmed the denial of post-conviction relief, and the Tennessee Supreme Court denied permission to appeal.

In 2009, Atkins filed an amended pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the Western District of Tennessee. He asserted three instances of ineffective assistance of juvenile counsel (IAJC) at his juvenile transfer proceedings and twelve instances of ineffective assistance of trial counsel (IATC). With regard to his juvenile counsel, Atkins asserted that she: (1) failed to inform Atkins of his right to testify and that such testimony would not be used against him; (2) refused the state's motion for a mental evaluation of Atkins, while knowing that Atkins was not mentally competent; and (3) failed to raise an insanity defense per Atkins's request after he informed counsel he was “hearing voices.” Atkins asserted that trial counsel failed to: (1) move to suppress Atkins's statement to police based on coercion; (2) object to the prosecutor's extracting an improper promise from the jury during voir dire; (3) request a curative instruction after the prosecutor elicited improper testimony from a witness; (4) object to descriptions of graphic photos of the step-father after the photos themselves had already been ruled inadmissible; (5) adequately cross-examine a witness to clarify her testimony concerning how long the step-father may have been alive after the attack; (6) call Atkins's mother as a witness; (7) question the possibility that the step-father's medical problems could have contributed to his death; (8) call any expert witness; (9) rebut the state's evidence concerning the step-father's peaceable character; (10) adequately cross-examine the state's witnesses concerning the step-father's peaceable character; (11) move that the “reckless homicide” and “criminally negligent homicide” instructions be included in the jury instructions; and (12) raise an insanity defense.

The district court denied Atkins's petition in 2012. It concluded that all but one of Atkins's claims, including all of his claims of IAJC and IATC, were procedurally defaulted because “no further avenue exists for exhausting the ... claims” in state court. Further, the district court determined that “Atkins cannot excuse his procedural default by arguing that the failure to exhaust these issues in state court is attributable to his post-conviction counsel['s]” ineffectiveness because there is no right to effective assistance of counsel in post-conviction proceedings.

We granted Atkins's request for a certificate of appealability (COA) as to one issue: “whether Atkins can establish cause and prejudice to excuse the procedural default of his claims that his juvenile court counsel and trial counsel were ineffective[?]”

STANDARD OF REVIEW

“Whether a petitioner's federal habeas claim is barred by procedural default is a question that we review de novo.” Hodges v. Colson, 727 F.3d 517, 529 (6th Cir.2013).

DISCUSSION

I. Ineffective Assistance of Trial Counsel

Atkins argues that new developments in the law render the district court's holding—that Atkins could not demonstrate cause to excuse the procedural default of his IATC claims by asserting post-conviction counsel's ineffectiveness—erroneous. We agree in part.

Generally, in order to respect state court rulings and preserve federalism principles, see Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 1316, 182 L.Ed.2d 272 (2012), before a federal court rules on the merits of a petitioner's § 2254 petition: (1) the petitioner must have exhausted his available state remedies, see Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004) ; 28 U.S.C. § 2254(b)(1)(A) ; and (2) the petitioner's claims must not be procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 729–30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). As occurred in many of the claims presented in the instant case, when a petitioner fails to present a claim in state court, but that remedy is no longer available to him, the claim is technically exhausted, yet procedurally defaulted. See Jones v. Bagley, 696 F.3d 475, 483–84 (6th Cir.2012) (“When a petitioner has failed to present a legal issue to the state courts and no state remedy remains available, the issue is procedurally defaulted.”). To excuse such a procedural default, a petitioner must show “cause for the default and prejudice from the asserted error.” House v. Bell, 547 U.S. 518, 536, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006).

In 2012, the Supreme Court held that “inadequate assistance of counsel at initial-review” state court collateral proceedings may establish the cause needed to excuse procedural default regarding claims for IATC. Martinez, 132 S.Ct. at 1315. As the Court reasoned,

Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

Id. at 1320 (emphasis added). Thus, to constitute cause to overcome procedural default under Martinez, a petitioner must show that: (1) he has a substantial claim of IATC; (2) counsel on initial state collateral review was nonexistent or ineffective; (3) the state collateral review proceeding was the initial review proceeding as to the IATC claim alleged; and (4) the state requires that the IATC claim be raised for the first time during the state collateral proceeding. Trevino v. Thaler, ––– U.S. ––––, 133 S.Ct. 1911, 1918, 185 L.Ed.2d 1044 (2013) (discussing the requirements under Martinez ). The Court emphasized that it simply created a “narrow exception” to Coleman, which held that “an attorney's ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural...