Burns v. Mays

• Decision Date: 13 April 2022
• Docket Number: s. 11-5214/14-6089
• Citation: 31 F.4th 497
• Parties: Kevin B. BURNS, Petitioner-Appellant, v. Tony MAYS, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

31 F.4th 497

Kevin B. BURNS, Petitioner-Appellant,

v.Tony MAYS, Warden, Respondent-Appellee.

Nos. 11-5214/14-6089

United States Court of Appeals, Sixth Circuit.

Argued: February 5, 2020

Decided and Filed: April 13, 2022

ARGUED: Richard Lewis Tennent, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE MIDDLE DISTRICT OF TENNESSEE, Nashville, Tennessee, for Appellant. Nicholas W. Spangler, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF: Richard Lewis Tennent, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE MIDDLE DISTRICT OF TENNESSEE, Nashville, Tennessee, for Appellant. Nicholas W. Spangler, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

Before: BATCHELDER, COOK, and STRANCH, Circuit Judges.

BATCHELDER, J., delivered the opinion of the court in which COOK, J., joined. STRANCH, J. (pp. 507–519), delivered a separate dissenting opinion.

ALICE M. BATCHELDER, Circuit Judge.

Kevin Burns, with five accomplices, approached a car in which Damond Dawson, Tracy Johnson, Eric Thomas, and Tommie Blackman were drinking gin and smoking marijuana. Looking for a fight due to some earlier slight, Burns and his accomplices robbed the four occupants of the car, and then began shooting them, killing two. Blackman escaped with a minor gunshot wound. Thomas, despite having been shot several times, managed to survive and his testimony played an instrumental role in the trials of Burns and his accomplices. Burns was convicted on two counts of felony murder, receiving a death sentence for the murder of Dawson and a life sentence for the murder of Johnson. In this capital habeas appeal, Burns claims that he received ineffective assistance of counsel at the sentencing stage, and that the State of Tennessee wrongfully relied on inconsistent testimony and knowingly presented false testimony at the guilt stage. We AFFIRM the judgment of the district court.

I.

On federal habeas review, "[t]he state court's factual findings enjoy a presumption of correctness, and will only be disturbed upon clear and convincing evidence to the contrary." England v. Hart , 970 F.3d 698, 706 (6th Cir. 2020). On direct appeal, the Tennessee Supreme Court made the following findings of fact:

On April 20, 1992, four young men, Damond Dawson, Tracey Johnson, Eric Thomas, and Tommie Blackman, were sitting in a car in Dawson's driveway in Memphis. Dawson was in the driver's seat, Johnson was in the front passenger seat, Thomas was in the back seat behind Dawson, and Blackman was in the back seat behind Johnson.

The defendant, Kevin Burns, and Carlito Adams, who knew Blackman, walked up to the passenger side of the car. Adams pulled out a handgun and told Blackman to get out of the car. When Blackman refused, Burns pulled out a handgun and went around to the driver's side of the car. Blackman got out of the car and fled. Adams said "get him," and three or four more men appeared from behind hedges and fired at Blackman.

Eric Jones, age fourteen, was playing basketball at Dawson's house with three friends. Jones saw the men in the car removing jewelry and pulling money from their pockets. Seconds later, Jones saw Blackman running toward him. Amidst gunshots, Jones and Blackman escaped to the back of the house; Jones’ three friends ran to an adjacent yard. Once inside the house, Jones heard seven or eight more gunshots.

Mary Jones, Eric Jones’ mother, lived across the street from the Dawsons. She saw Adams shoot Johnson once in the chest. She saw Kevin Burns shoot Dawson several times, walk to the front of the car, and then shoot Dawson again. Ms. Jones unequivocally identified Burns and stated that she got "a real good look in his face" as he ran toward her after the shootings.

Tracey Johnson died at the scene. Damond Dawson, who suffered five gunshots to his arm, buttocks, chest, and hip was alive when police arrived but died after being transported to the hospital. Eric Thomas, who sustained gunshots to his chest and stomach, survived and made a photo identification of Kevin Burns two days after the incident.

Thomas testified that Burns and the others had "opened fire" after robbing him and his friends of their jewelry and money. Thomas said that he initially told police he had been shot by Adams, but explained that he believed he was going to die and gave police the only name he knew, which was Adams.

On June 23, 1992, Burns was found in Chicago and arrested. After being advised of his rights and signing a waiver, the defendant gave a statement in which he admitted his role in the killings. [Burns] said that he had received a telephone call from Kevin Shaw, who told him that four men had "jumped" Shaw's cousin. Burns, Shaw, and four others intended to fight the four men, and Shaw gave Burns a .32 caliber handgun. As the others approached a car with four men sitting in it, Burns stayed behind. He heard a shot, saw a man running across the yard, and fired three shots. He then left the scene with the other men.

State v. Burns , 979 S.W.2d 276, 278 (Tenn. 1998).

The Tennessee jury convicted Burns of two counts of felony murder and two counts of attempted felony murder. Id . at 277. "The jury imposed the death penalty for one of the felony murder convictions after finding that evidence of an aggravating factor—that the defendant knowingly created a great risk of death to two or more persons other than the victim murdered—outweighed the evidence of mitigating factors beyond a reasonable doubt." Id . The jury imposed a life sentence for the other felony-murder conviction. The Tennessee Court of Criminal Appeals affirmed the two felony-murder convictions and corresponding sentences but reversed the attempted-felony-murder convictions. Id . The Tennessee Supreme Court affirmed the judgment of the Court of Criminal Appeals, id . at 278, noting, among other things, that the reversal of the attempted felony murder convictions was correct because in Tennessee, as in most jurisdictions, "the offense of attempted felony murder does not exist," id . at 280, but that reversal of the conviction on those counts "does not affect the jury's finding regarding the aggravating circumstance," id. at 281.

In 2006, Burns filed his petition for a writ of habeas corpus, under 28 U.S.C § 2254, alleging roughly two dozen grounds for relief. In 2010, the district court dismissed the petition as meritless, but granted a certificate of appealability ("COA") for only the issue of ineffective assistance of counsel at sentencing. On February 3, 2013, we granted a COA for additional issues: "(1) whether the State improperly relied on inconsistent statements from a witness concerning who shot him; (2) whether the State knowingly presented false testimony; (3) whether women were improperly under-represented in being appointed as the foreperson for Shelby County, Tennessee grand juries; and (4) whether ineffective assistance by counsel in state post-conviction proceedings can constitute cause to excuse Burns's procedural default of a claim." On July 18, 2013, we remanded Burns's case for further consideration in light of two recent Supreme Court decisions, Martinez v. Ryan , 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), and Trevino v. Thaler , 569 U.S. 413, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013). On August 6, 2014, the district court concluded that neither Martinez nor Trevino provided a basis for granting Burns habeas relief and again denied his § 2254 petition. The district court denied Burns's motion to expand the COA, and we likewise denied him a COA to appeal the denial of relief based on Martinez and Trevino . In a subsequent motion, Burns sought a COA for several additional issues, and we denied that motion.

In this capital habeas appeal, Burns pursues only two of his claims: (1) that he received ineffective assistance of counsel at the sentencing stage, and (2) that the State of Tennessee wrongfully relied on inconsistent testimony and presented false testimony. Burns waived two other issues that were available on appeal: whether there was an underrepresentation of women in Shelby County, Tennessee, grand juries and whether his receiving ineffective assistance of counsel can constitute cause to excuse his procedural default of a claim.

II. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), governs habeas petitions. Section 2254(d) states that we may grant a habeas petition filed by a state prisoner with respect to "any claim that was adjudicated on the merits in State court proceedings," only if: (1) the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law," or (2) the state court decision was "based on an unreasonable determination of the facts" in light of the record before it. § 2254(d)(1)–(2). AEDPA imposes on federal courts a highly deferential standard of review of state court judgments. Cullen v. Pinholster , 563 U.S. 170, 181, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) ("[AEDPA] is a ‘difficult to meet’ and ‘highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.’ " (citations omitted)).

"We review the district court's factual findings for clear error, and its legal conclusions de novo." Hart , 970 F.3d at 706. "The state court's factual findings enjoy a presumption of correctness, and will only be disturbed upon clear and convincing evidence to the contrary." Id .

III. Ineffective Assistance of Counsel

Burns claims that he received ineffective assistance of counsel during the sentencing phase of his trial. The state trial court, the Tennessee Court of Criminal Appeals, and the district court each concluded that this claim was meritless. Burns makes two arguments on appeal: (1) that trial counsel failed to present evidence at sentencing that Burns did not shoot one of the victims, namely Dawson, and (2) that trial counsel's performance...