Quintero v. Westbrooks

• Decision Date: 31 March 2017
• Docket Number: No. 3:09-cv-00106,3:09-cv-00106
• Parties: DERRICK QUINTERO, Petitioner, v. BRUCE WESTBROOKS, Warden, Respondent.
• Court: U.S. District Court — Middle District of Tennessee

DERRICK QUINTERO, Petitioner, v. BRUCE WESTBROOKS, Warden, Respondent.

No. 3:09-cv-00106

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

March 31, 2017

Chief Judge Sharp

DEATH PENALTY CASE

MEMORANDUM OPINION

Petitioner Derrick Quintero, a state prisoner on death row at Riverbend Maximum Security Institution, was convicted on two counts of first degree murder for killing an elderly couple, Myrtle and Buford Vester, in their Stewart County home sometime during the night of June 20 or the early morning hours of June 21, 1988. Petitioner and his co-defendant, William Hall, were sentenced to life in prison for Mr. Vester's murder and death for Mrs. Vester's murder.¹ After Tennessee courts affirmed his convictions and sentences on direct appeal and post-conviction, Petitioner filed a petition in this Court under 28 U.S.C. § 2254 for the federal writ of habeas corpus, in which he claimed, inter alia, that his trial counsel were ineffective at his sentencing hearing. (Docket Entry No. 16, at 63-71.) Specifically, Petitioner asserted in Claim 15 of his petition that his trial counsel were ineffective for failing to investigate and present compelling mitigation evidence, including childhood injuries that left him brain damaged and prone to severe seizures, and for failing to make any plea for Petitioner's life at sentencing. (Docket Entry No. 16, at 63-71.)

The parties agreed that Petitioner had exhausted only three specific ineffective-assistance-of-trial-counsel [IATC] claims in state court in connection with his sentencinghearing: (1) failing to present the testimony of Kathleen Bernhardt; (2) failing to maintain a mitigation specialist/investigator; and (3) failing to make a closing argument at sentencing. (Docket Entry Nos. 152, at 51; 165, at 44.) On December 12, 2014, the Court dismissed those three specific sub-claims, along with all of Petitioner's other claims. (Docket Entry Nos. 169, 170.) The dismissal did not include the defaulted portions of Claim 15:

That does not resolve the entirety of Claim 15, however. Although Petitioner's current mitigation claims are loosely connected to his claim that trial counsel was ineffective for failing to maintain the services of a mitigation investigator, Respondent has asserted that Claim 15 presents multiple theories of ineffective assistance and that "[m]any have not been previously presented." (Docket Entry No. 152, at 51.) Specifically, he asserts that "Quintero's claims, and the newly alleged facts supporting them, related to unpresented mitigation evidence and failure to obtain psychological testing are procedurally defaulted." (Id. at 52.) Petitioner acknowledges that these claims were not presented to state court. (Docket Entry No. 165, at 44.) Accordingly, with the exception of Bernhardt's testimony, there is no state court determination on the merits of Petitioner's claims about the specific mitigation evidence he faults his trial counsel for not presenting, and this Court may only review the merits of the claim if it finds cause and prejudice to excuse the default.

(Docket Entry No. 169, at 92.)

Defaulted habeas claims are ordinarily barred from federal judicial review unless the petitioner demonstrates "cause for the default and actual prejudice as a result of the alleged violation of federal law." Coleman v. Thompson, 501 U.S. 722, 750 (1991). In Martinez v. Ryan, 132 S. Ct. 1309 (2012), the Supreme Court announced that the ineffective assistance of post-conviction counsel can, under limited circumstances, establish cause for the default of a claim of ineffective assistance of trial counsel. Martinez, 132 S. Ct. at 1320; see also Sutton v. Carpenter, 745 F.3d 787 (6th Cir. 2014) (holding that Martinez applies in Tennessee). Petitioner asserted that his post-conviction counsel were ineffective for failing to present the defaulted portions of his underlying IATC claim, and that the new sub-claims and evidence were therefore reviewable pursuant to Martinez. (Docket Entry No. 165, at 44.)

At the time that it dismissed Petitioner's other claims, the Court summarized portions of Petitioner's ineffective-assistance claim, including evidence of neuropsychological dysfunctionconsistent with a childhood injury and generally troubled childhood, and found that it had some factual support and was sufficiently debatable to warrant further proceedings. (Id. at 94.) Accordingly, the Court concluded that the claim was "substantial" for the purpose of satisfying one component of the test under Martinez to overcome the default of the claim, and granted Petitioner an evidentiary hearing to develop the merits of the underlying claim and demonstrate that post-conviction counsel were ineffective for failing to raise it. (Docket Entry No. 170, at 1; Docket Entry No. 169, at 94.)

The hearing² ultimately spanned six days in February and May of 2016, during which the Court heard the testimony of seven witnesses for Petitioner and two witnesses for Respondent, and received more than seventy exhibits into evidence. (Docket Entry Nos. 210-213, 226-227, 230-236.) Since the hearing, the parties have exhaustively briefed the remaining issue and their proposed findings regarding the evidence. (Docket Entry Nos. 245, 247, 249, 253, 254, 255, 259.) The Court now evaluates the parties' arguments and the evidence in light of the applicable standards from Martinez and Strickland v. Washington, 466 U.S. 668 (1984), and concludes that Petitioner fails to satisfy those standards.

I. STANDARDS OF REVIEW

Under Martinez, to establish "cause" to obtain review of an otherwise procedurally defaulted claim, a petitioner must show that (1) he had ineffective assistance of post-conviction counsel during the "initial-review collateral proceeding," Martinez, 132 S. Ct. at 1315; and (2) that the defaulted claim is "substantial," that is, "that the claim has some merit." Id. at 1318. The United States Court of Appeals for the Sixth Circuit has explained in relevant part that "to constitute cause to overcome procedural default under Martinez, a petitioner must show that: (1) he has a substantial claim of IATC [ineffective-assistance-of-trial-counsel]; (2) counsel on initial state collateral review was nonexistent or ineffective; [and] (3) the state collateral reviewproceeding was the initial review proceeding as to the IATC claim alleged." Atkins v. Holloway, 792 F.3d 654, 658 (6th Cir. 2015) (citing Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013)). The court went on to describe the proper framework for evaluating claims under Martinez:

As to these claims, the district court should determine . . . : (1) whether state post-conviction counsel was ineffective; and (2) whether [Petitioner's] claims of ineffective assistance of counsel were "substantial" within the meaning of Martinez, Sutton [v. Carpenter, 745 F.3d 787 (6th Cir. 2014)], and Trevino. Questions (1) and (2) determine whether there is cause. The next question is (3) whether [Petitioner] can demonstrate prejudice. Finally, the last step is: (4) if the district court concludes that [Petitioner] establishes cause and prejudice as to any of his claims, the district court should evaluate such claims on the merits. Under this framework, which is consistent with Supreme Court precedent and our holding in Sutton, [Petitioner] has a long way to go before the district court could even evaluate the merits of his claims. Moreover, even "[a] finding of cause and prejudice does not entitle the prisoner to habeas relief. It merely allows a federal court to consider the merits of a claim that otherwise would have been procedurally defaulted." Martinez, 132 S. Ct. at 1320.

Atkins, 792 F.3d at 660 (some internal citations omitted). More recently, the court has elaborated on what is required to satisfy those first three prongs:

First, [Petitioner] must establish that his underlying ineffective assistance of trial counsel claims are "substantial," "which is to say that ... [they have] some merit." Martinez, 132 S. Ct. at 1318-19 (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). Or, in certificate of appealability parlance, it is "debatable among jurists of reason." Abdur'Rahman v. Carpenter, 805 F.3d 710, 713 (6th Cir. 2015); see also Atkins, 792 F.3d at 660 ("The Court in Martinez cited Miller-El v. Cockrell ... for purposes of defining a 'substantial claim,' and Cockrell describes the standard for issuing a COA."). . ..

Second, [Petitioner] must also establish he received ineffective assistance of counsel during his initial-review collateral proceeding under the familiar Strickland standards. Martinez, 132 S. Ct. at 1318. Under Strickland v. Washington's two-prong test, a person challenging his counsel's representation must show (1) deficient performance, i.e., that "counsel's representation fell below an objective standard of reasonableness" and (2) prejudice. 466 U.S. 668, 687-88, 691-92 (1984). Courts must "apply a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance." Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689). To establish prejudice, a challenger must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A 'reasonable probability' is a probability 'sufficient to undermine confidence in the outcome,' but something less than a showing that the outcome more likely than not would have been different." Bigelow v. Williams, 367 F.3d 562, 570 (6th Cir. 2004) (quoting Strickland, 466 U.S. at 693, 694). This "difference" is "slight andmatters 'only in the rarest case.'" Harrington, 562 U.S. at 112 (quoting Strickland, 466 U.S. at 697).

Porter v. Genovese, - F. App'x -, No. 16-5317, 2017 WL 167469, at *3-4 (6th Cir. Jan. 17, 2017).

As noted above, the Court previously determined based on Petitioner's allegations that the...