govinfo:USCOURTS-tnmd-3_10-cv-00465-8

UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF TENNESSEE 
NASHVILLE DIVISION 
LE
TONIO C. SWADER ) 
) 
Petitioner, ) Case No. 3:10- cv-00465 
) 
v. ) 
) Judge Eli Richardson 
SHA
WN PHILLIPS, WARDEN ) 
) 
Respondent. ) 
MEM
ORANDUM OPINION AND ORDER 
Pe
nding before the Court 1 is a report and recommendation of the Magistrate Judge (Doc. 
No. 147, “R&R”), wherein the Magistrate Judge recommends that th e Court deny the “Second 
Amended Petition for Writ of H abeas Corpus” (Doc. No. 51, “ Amended Petition”) filed by 
Petitioner, Letonio C. Swader . Petitioner filed objection s to the R&R (Doc. No. 155, 
“Objections”),2 to which Respondent filed a response (Doc. No. 159, “Response to Objections”). 
Unsurprisingly, Respondent did not file any objections to the R&R. 
Also pending before the Court is Petitioner’s “Motion to Substitute” (Doc. No. 160) , 
wherein Petitioner requests “ an order substituting Shawn Phillips, Warden, for Guy Bosch as 
Respondent.” (Id. at 1). In that motion, Petitioner asserts that “[i]n this habeas corpus proceeding, 
the proper Respondent is the current Warden of the prison where the State confines [Petitioner], 
which is the Morgan County Correctional Complex [MCCX] in Wartburg, Tennessee. ” ( Id.). 
1 Herein, “the Court” refers to the undersigned District Judge, as opposed to the Magistrate Judge who 
authored the R&R. 
2 Herein, a given use of the term “Objections” may refer to the document (Doc. No. 155 ) itself, to the 
purported objections contained therein (i.e., the “objections” to the R&R contained within the 
“Objections”), or both. PageID #: <pageID>
Petitioner further asserts essentially that Guy Bosch has been replaced as the Warden of MCCX 
and that Shawn Phillips is the current Warden of MCCX. (Id.). This motion is unopposed and is 
well taken, and therefore it (Doc. No. 160) is GRANTED. 
 For the reasons stated herein, the Court will adopt the R&R and deny the Amended Petition. 
LEGAL STANDARD FOR REVIEW OF A REPORT AND RECOMMENDATION 
When a magistrate judge issues a report and recommendation regarding a dispositive 
pretrial matter, the district court judge shall make a de novo determination of those portions of the 
report or specified proposed findings or recommendations to which a proper objection is made. 
Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1). 3 The district judge may accept, reject, or modify 
 
3 Significantly, and perhaps surprisingly, the statute does not actually direct the district judge to expressly 
rule on the objections themselves (i.e., expressly sustain or reject the objector’s specific criticism(s) of what 
the magistrate judge did). Instead of requiring the district judge to determine the validity of the objections 
to what the magistrate judge did, the statute requires the district judge to make a determination—de novo , 
which inherently means ultimately without reference to whether what the magistrate judge did was 
objectionable—of the portion(s) of the report and recommendation to which objection was made. Moreover, 
since the review of the objected-to portions of the report and recommendation is de novo, any critiquing of 
what the magistrate judge did ultimately would be dicta (albeit relevant and probative dicta to the extent 
that such critiquing explains the analysis underlying the district judge’s determination of the objected-to 
portions of the R&R). Additionally, district judges in this Circuit not infrequently either decline to rule on 
(or, to the same effect, deny as moot) particular objections on the specific ground that so doing is 
unnecessary to rule on the objected-to portion of the report and recommendation. E.g., Collins v. Bright, 
No. 2:13-CV-02987-JPM-CGC, 2021 WL 5205622, at *3 (W.D. Tenn. Nov. 9, 2021) (“[T]his objection 
does not affect or alter the conclusions of the Magistrate Judge and is overruled as moot.”); Lashuay v. 
Fornwalt, No. 1:15-CV-1109, 2017 WL 4160947, at *1 (W.D. Mich. Sept. 20, 2017) (“This Court need not 
resolve all of the objections,” because only some of them needed to be addressed in order to resolve the 
motion that was the subject of the report and recommendati on); Weatherspoon v. Williams, No. 2:14-CV-
108, 2016 WL 6070994, at *1 (W.D. Mich. Oct. 17, 2016) (“Plaintiff's objections are irrelevant and will be 
denied.”); Bowers v. Burnett, No. 1:08-CV-469, 2011 WL 1047343, at *2 n.1 (W.D. Mich. Mar. 18, 2011) 
(noting that the Court need not resolve an objection to the extent that the objector’s position on the R&R 
has other fatal deficiencies); Powell v. Alcoa High Sch., No. 3:10-CV-212, 2010 WL 2598260, at *2 (E.D. 
Tenn. June 24, 2010) (“[B]ecause this objection is irrelevant to [the magistrate judge’s] recommendations, 
it is hereby overruled.”); Cline v. Kelly, No. 09CV859, 2010 WL 1006529, at *1 n.1 (N.D. Ohio Mar. 16, 
2010) (“The Court acknowledges [the petitioner’s] objection, but need not resolve it because that specific 
fact is not relevant to the resolution of any of the grounds for relief set forth in [the petitioner’s] Petition” 
that the magistrate judge had recommended be denied). 
 Thus, although it seems clear that the district judge can expressly rule on the objections, the Court 
concludes that a district judge is not required to do so. And herein, the Court declines to do so, focusing 
instead on the required de novo review and determination of the objected-to parts of the R&R —albeit in PageID #: <pageID>
the recommended disposition, review further evidence, or return the matter to the magistrate judge 
with instructions. Id. 
Only “specific written objections” to the magistrate judge’s proposed factual findings and 
legal conclusions are “proper” under Federal Rule of Civil Procedure 72(b). Frias v. Frias, No. 
2:18-cv-00076, 2019 WL 549506, at *2 (M.D. Tenn. Feb. 12, 2019). Likewise, the applicable 
statute contemplates de novo determination only “of those portions of the report or specified 
proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). 
Furthermore, Local Rule 72.02(a) provides that such objections must be written and must state 
with particularity the specific portions of the Magistrate Judge’s report or proposed findings or 
recommendations to which an objection is made. See Fed. R. Civ. P. 72(b)(2); L.R. 72.02(a). The 
upshot is that the Court: (i) must review, de novo, the specific portions of the Magistrate Judge’s 
report or proposed findings or recommendations to which written objection is made; and (ii) need 
not review any other portion of the report and recommendation. 
PROCEDURAL BACKGROUND 
Neither Petitioner nor Respondent dispute the cogent recitation of the procedural 
background of this matter —including descriptions of the evidence introduced at trial and at the 
hearing on Petitioner’s petition for post -conviction relief—set forth in the R&R .4 Based on the 
absence of a challenge to this recitation and the Court’s independent review of it, the Court adopts 
it and sets forth that recitation immediately below. 
The R&R initially noted: 
In 2004, a jury convicted Petitioner . . . of first- degree felony murder, 
second-degree murder, attempted especially aggravated robbery, and possession of 
 
part by taking account of any ways in which the objections (and response thereto) shed light on what the 
Court’s ultimate determination should be. 
 
4 All of the applicable procedural history was from proceedings in various Tennessee state courts. PageID #: <pageID>
a deadly weapon during the commission of an offense. State v. Swader, No. M2005-
00185-CCA-R3-CD, 2006 Tenn. Crim. App. LEXIS 109, at *1 (Crim. App. Feb. 
6, 2006); Docket No. 1, p. 1. 
 
Petitioner’s murder convictions were merged, and he was sentenced to life. 
Id. The Petitioner was also sentenced to 10 years for the attempted especially 
aggravated robbery conviction and two years for the possession of a weapon 
convictions. Id. On February 6, 2006, the Tennessee Court of Criminal Appeals 
affirmed Petitioner’s conviction. Id. Thereafter, the Petitioner filed for post -
conviction relief raising claims of insufficient evidence to support his conviction, 
ineffective assistance of counsel, and double jeopardy. Swader v. State, No. M2008 
01021-CCA-R3-PC, 2009 Tenn. Crim. App. LEXIS 854 (Crim. App. Oct. 7, 2009). 
The state court rejected Petitioner’s arguments. Id. at *11. Subsequently, the 
Tennessee Supreme Court declined Petitioner’s permission to appeal on three 
occasions. State v. Swader, No. M2005-00185-SC-R11 CD, 2006 Tenn. LEXIS 576 
(June 26, 2006); Swader v. State , No. M2008- 01021-SC-R11-PC, 2010 Tenn. 
LEXIS 245 (Mar. 15, 2010); Swader v. State, No. M2013-01585-SC-R11-PC, 2014 
Tenn. LEXIS 170 (Feb. 24, 2014). 
 
Having exhausted his attempts to seek relief in state courts, Petitioner now 
brings this action to seek habeas corpus relief action under 28 U.S.C. § 2254. 
Docket No. 51, p. 2; Docket No. 51, p. 12. Petitioner requests that this Court find: 
(1) ineffective assistance of counsel; (2) the State’s withholding of material 
evidence constituted a violation of Brady v. Maryland [373 U.S. 83 (963)]; (3) the 
State knowingly proffered false testimony; (4) the Petitioner’s confession was 
involuntary and should have been suppressed; and (5) that the Petitioner’s sentence 
of life imprisonment constituted cruel and unusual punishment. Docket No. 51, p. 
6-11. 
 
(R&R at 1 -2). The R&R then set forth the evidence adduced at Petitioner’ s trial and hearing on 
post-conviction review in state court (primarily by quoting the Tennessee Court of Criminal 
Appeals): 
In deciding Petitioner’s direct appeal from his conviction, the Tennessee 
Court of Criminal Appeals summarized the factual background of this case: 
 
On February 2, 2003, the victim, Kristen Holzapfel, was shot 
in the back while standing outside an apartment complex in 
Murfreesboro. A petition was filed in the Rutherford County 
Juvenile Court, charging the appellant with first degree felony 
murder, attempted especially aggravated robbery, and possession of 
a firearm during the commission of an offense. The appellant was 
transferred to criminal court to be tried as an adult. The Rutherford 
County Grand Jury then charged the appellant with first degree PageID #: <pageID>
premeditated murder, first degree felony murder, attempted 
especially aggravated robbery, and possession of a firearm during 
the commission of an offense. 
 
Wayne Lawson, the victim’s boyfriend, testified at trial that 
he was a detective with the Murfreesboro Police Department and 
was divorced with two young children. In February 2003, Lawson 
lived in the Gateway apartment complex, apartment number A-9. He 
stated that on Sunday, February 2, 2003, he and the victim spent the 
day with his children. That evening, the victim and Lawson’ s 
daughter made jewelry from a craft kit, and Lawson prepared dinner. 
They finished eating about 5:30 p.m., and Lawson began bathing his 
children while the victim cleaned up in the living room. At some 
point, the victim went into the bathroom and asked Lawson for his 
car keys so that she could get a vacuum cleaner out of his car. 
Lawson gave the victim the keys, and the victim went outside. 
Lawson testified that after he finished bathing his children, his 
daughter told him that she could not find the victim and that a police 
officer was outside. Lawson looked out a window and saw the 
officer standing over the victim, who was lying on t he ground next 
to Lawson’s car. Lawson went outside, and Officer April Samol told 
Lawson that she believed the victim had been shot. Lawson saw a 
small hole in the victim's back and a large amount of blood around 
her head. Lawson turned the victim over and saw that her eyes were 
open and that her pupils were fixed. The victim was unresponsive, 
had no pulse, and was not breathing. Lawson stated that he never 
heard a gunshot. 
 
Isaac Putnam testified that in February 2003, he lived in the 
Gateway apartment complex, apartment number A -13. On the 
evening of February 2, he and his wife heard a gunshot. Putnam 
walked onto his patio and saw the victim lying on the sidewalk. He 
also saw blood underneath the victim’s body and ran back inside to 
telephone 911. By the time he got off the telephone, Officer Samol 
had arrived. On cross-examination, Putnam stated that after he heard 
the gunshot and went outside, he did not see anyone other th an the 
victim. 
 
Officer April Samol of the Murfreesboro Police Department 
testified that on February 2, 2003, she was dispatched to the 
Gateway apartment complex in response to a possible shooting. 
When she arrived, Isaac Putnam flagged her down and told her that 
a woman was lying in the parking lot. Officer Samol saw the victim 
lying face-down in a fetal position. Wayne Lawson came out of his 
apartment and asked what was going on, and Officer Samol got out 
of her patrol car and told him that she thought the victim had bee n PageID #: <pageID>
shot. Lawson began screaming and crying. The victim did not have 
a pulse and was not breathing. Lawson lifted the victim's shirt, and 
Officer Samol saw a gunshot wound in the victim's back. When 
other officers arrived, they found a nine millimeter shell ca sing in 
the parking lot. They also found a set of keys, a vacuum cleaner, and 
a vacuum cleaner bag. 
 
Jennifer Lynn Blackwell testified that on February 2, 2003, 
she lived in the G building of the Gateway apartment complex. That 
evening, Blackwell was talking on her cellular telephone when an 
African-American male in his teens or early twenties walked up to 
her glass door. He asked Blackwell for a cigarette, and she gave him 
one. The male was standing about one and one-half feet away from 
Blackwell, and she saw him for about thirty seconds. She stated that 
she was ninety to ninety -five percent certain that the male was the 
appellant. 
 
Special Agent Jason Wilkerson of the Tennessee Bureau of 
Investigation (TBI) testified that he investigated the case. A nine -
millimeter shell casing was recovered from the crime scene and was 
found about twenty feet from the sidewalk. Agent Wilkerson also 
attended the victim’ s autopsy and received vials of the victim ’s 
blood and urine and her clothes. At some point, the appellant became 
a suspect. On the night of February 7, 2003, Agent Wilkerson and 
Detective Major Jim Gage were sitting in Gage ’s unmarked police 
vehicle and were conducting surveillance on the appellant ’s home. 
The appellant came out of his house, walked over to the vehicle, and 
began talking with the officers. The appellant told the officers his 
name, and the officers told the appellant that they needed to speak 
with him about a crime that had taken place. The appellant got in the 
front passenger seat of the vehicle, Agent Wilkerson got in the back 
seat, and Detective Gage drove them to the police department. Agent 
Wilkerson testified that the appellant was not under arrest at that 
time. 
 
Agent Wilkerson testified that when they arrived at the 
police department, he read the appellant Miranda warnings and had 
the appellant sign a waiver of rights form. The appellant gave a 
statement, and Agent Wilkerson wrote out the statement. After the 
interview, the appellant read, made corrections to, and signed the 
written statement, which was read to the jury. According to the 
written statement, the appellant borrowed a nine -millimeter gun 
from Eric Sargent. On the day of the shooting, he was at an 
apartment complex in Murfreesboro and was near the G building. 
He walked toward the A building and saw a woman outside. The 
appellant walked up to the woman and pointed the gun at her. The PageID #: <pageID>
woman, who was near the sidewalk, turned to run, and the appellant, 
who was standing in the parking lot, turned away from her. As the 
appellant turned, the gun “went off.” The appellant did not know if 
the woman had been shot and ran away. According to the written 
statement, the appellant pointed the gun at the woman in order to get 
money from her and had “ thought about robbing someone before 
[he] went over there and did it.” 
 
Agent Wilkerson testified that during the interview, he asked 
the appellant how the appellant got to the apartment complex and 
the appellant would not tell him. He stated that the appellant also 
would not say where the appellant went after the shooting. Th e 
appellant told Agent Wilkerson that after the shooting, he gave the 
gun back to its owner but would not tell him who owned the gun. 
Agent Wilkerson later learned that the gun belonged to Jimmy 
Douglas’ uncle. Agent Wilkerson said that the appellant told him the 
appellant was about seven feet away from the victim at the time of 
the shooting. Agent Wilkerson testified that the appellant’ s 
interview was videotaped, and the tape was played for the jury. 
 
Detective Major James E. Gage of the Murfreesboro Police 
Department testified that because Wayne Lawson was a detective 
with the police department, the TBI handled the investigation. From 
Jennifer Blackwell’s description, the police developed a composite 
sketch of a suspect. Blackwell had described the suspect as an 
African-American male; about five feet, nine inches tall; in his early 
twenties; and wearing a bulky, quilted jacket. Detective Gage stated 
that when he and Agent Wilkerson drove the appellant to the police 
department, the appellant was wearing a heavy, down- filled jacket. 
At the police department, the appellant told Detective Gage that he 
had talked with a woman at the apartment complex before the 
shooting. Detective Gage testified that accordin g to Jennifer 
Blackwell, the male she saw on the night of the shooting had asked 
her for a cigarette between 6:00 and 6:05 p.m. Detective Gage stated 
that the 911 call reporting the shooting was received at the police 
department between 6:12 and 6:16 p.m. 
 
Dr. Amy R. McMaster testified that she performed the 
victim’s autopsy. The victim had a gunshot wound to the middle of 
her upper back and died from the gunshot. The bullet traveled 
straight, and Dr. McMaster concluded that the gun was not fired at 
an angle. The bullet severed the victim’s spinal cord, and the victim 
would have been paralyzed and unable to walk. The bullet also 
severed the victim’s aorta, and the victim would have bled to death 
quickly. After receiving the gunshot, the victim could have lived for 
a few minutes, but she would have been unable to speak. Dr. PageID #: <pageID>
McMaster found no soot on the victim’s skin or clothing, indicating 
that the wound was a “ distant gunshot wound.” On cross -
examination, Dr. McMaster testified that if the gun had been seven 
feet away from the victim when fired, the resulting wound would 
have been classified as a distant gunshot wound. 
 
Special Agent Don Carman of the TBI testified that he was 
a forensic scientist in the firearms identification unit. He received a 
nine millimeter pistol from Agent Wilkerson, a shell casing 
recovered from the crime scene, and a bullet recovered from the 
victim’s body. Agent Carman test -fired bullets from the pistol and 
compared them to the bullet recovered from the victim. He 
concluded that the bullet recovered from the victim was fired from 
the gun. He also examined the spent shell casing recovered from the 
crime scene and concluded that it had been fired from the gun. Agent 
Carman stated that in order for the gun to have been fired, seven and 
three-quarter pounds of pressure had to be applied to the trigger. He 
examined the victim’s clothing and found no gunpowder residue. On 
cross examination, Agent Carman testified that if the gun had been 
fired from more than three or four feet away, the gun would not have 
left gunpowder residue on the victim. 
 
The appellant, who was seventeen years old at the time of 
trial, testified that he had been sixteen at the time of the shooting 
and a full-time high school student. On the afternoon of February 2, 
2003, he was at his cousin Robert Gooch’ s house and stayed there 
for two to five hours. At some point, the appellant telephoned 
Shurrell Hyde, a former girlfriend. He went to Hyde ’s house about 
5:30 p.m. and stayed there for about thirty minutes. The appellant 
then went outside, smoked a marijuana cigarette, and s tarted 
walking. He said that he walked to the Gateway apartment complex, 
saw a woman outside, and asked her for a cigarette. The woman 
gave him the cigarette, and the appellant continued walking. The 
appellant saw the victim and walked past her. He turned around, and 
the two of them looked at each other briefly. The appellant said that 
the victim turned to run, that he turned to run, that the gun fired, and 
that “everything went black.” 
 
The appellant testified that he ran back to Robert Gooch’ s 
house and that Gooch drove him home. He left the gun at Gooch’ s 
house and learned the next morning that the victim had been killed. 
A few days after the shooting, the appellant noticed Agent Wilkerson 
and Detective Gage outside, near a church. He walked up to them 
and told them his name. The officers drove the appell ant to the 
police department, and the appellant told them about the shooting. 
He stated that he did not remember telling Agent Wilkerson that he PageID #: <pageID>
had gone to the apartment complex intending to rob someone and 
that he did not go to the Gateway apartment complex intending to 
commit a robbery. He acknowledged signing the written statement 
but said that he did so because he wanted to see his mother and “get 
it over with.” When asked if he could give a reason for his pointing 
the gun at the victim, the appellant stated that he could not. 
 
On cross-examination, the appellant testified that he could 
read and write. He stated that he borrowed the gun from Eric 
Sargent, a schoolmate, on the Tuesday or Wednesday before the 
shooting and that he was carrying the gun for protection. The 
appellant said that he carried the gun in his waistband or his pocket 
and that he showed the weapon to several friends. He said that 
Sargent told him the gun was loaded but that he never checked the 
gun. On the evening of February 2, the appellant visited Shurrell 
Hyde, went outside and smoked marijuana, and started walking. He 
walked to the Gateway apartment complex, looking for someone 
who could give him a cigarette. He saw Jennifer Blackwell talking 
on her cellular telephone, and she gave him one. After receiving the 
cigarette, he continued walking but did not know where he was 
going. The appellant saw the victim and walked past her. He turned 
around and made eye contact with the victim. He pulled out his gun, 
the victim turned to run, the appellant turned to run, a nd the gun 
fired. 
 
The appellant acknowledged that before the shooting, the 
victim had not been a threat to him. He stated that he did not know 
why he turned around to look at the victim and that he ran away after 
the shooting because he was scared. He denied “ plotting” to rob 
someone and said that if he had known the victim had been shot, he 
would have tried to get help for her. The appellant said that he ran 
back to Robert Gooch’s house and left the gun beside a tree but that 
he was not trying to hide the gun. He said that he learned the next 
morning that the victim had been killed, that he went to school, and 
that he was planning to turn himself in to the police. He denied 
shooting the victim because she could identify him and said that he 
“truly and deeply” did not know why he shot her. 
 
Although the appellant was charged with first degree 
premeditated murder, the jury convicted him of the lesser included 
offense of second degree murder, a Class A felony. The jury also 
convicted him of first degree felony murder; attempted especially 
aggravated robbery, a Class B felony; and possession of a deadly 
weapon during the commission of an offense, a Class E felony. The 
trial court merged the murder convictions and sentenced the 
appellant to life. The trial court also sentenced the appellant as a PageID #: <pageID>
Range I, standard offender to ten years for the attempted especially 
aggravated robbery conviction and two years for the possession of a 
weapon conviction. The trial court ordered the appellant to serve the 
life and ten -year sentences concurrently and ordered that the two -
year sentence be served consecutively to the other two. 
 
Swader, 2006 Tenn. Crim. App. LEXIS 109, at *2. 
 
Thereafter, in considering Petitioner’s post-conviction petition, trial counsel 
testified at the post-conviction hearing as follows: 
 
At the post-conviction hearing, the petitioner’s trial counsel 
testified that he had eighteen years of experience. He testified that 
he did not represent the petitioner in juvenile court. He said that he 
was appointed to represent the petitioner and that he visited him in 
jail at least two times. Couns el reviewed discovery with the 
petitioner and met with him on other occasions surrounding court 
appearances. Counsel did not file any written motions in this matter. 
He testified that this was a strategic deci sion because the district 
attorney general agreed not to file a notice of enhancement if counsel 
would not seek a continuance to file written motions. On cross -
examination, he explained that the State had provided him with 
witness statements and the tapes it intended to introduce. The State 
agreed to redact portions of the tapes that counsel thought were 
objectionable and agreed to allow him to make a motion to suppress 
the petitioner’s statement orally. 
 
Counsel said that he did not ask for a new mental evaluation 
to be done by the trial court because the petitioner had been found 
competent by the juvenile court. He did not have any reason to 
believe that the petitioner was incompetent. He said that he did not 
seek expert testimony because it was their position that the shooting 
was an accident. 
 
The petitioner testified that the only time trial counsel came 
to visit him in jail was in the day before trial and that counsel spoke 
to him for only fifteen to twenty minutes. The petitioner testified 
that he did not recall authorizing counsel to make a plea agreement. 
He said that, if he had it to do over again, he would not have agreed 
to transfer to Circuit court. The petitioner acknowledged that he 
spoke with counsel at the courthouse for a few minutes at a time 
prior to court proceedings. 
 
The petitioner testified that he did not feel informed about 
his case while it was pending. He said that counsel advised him to 
testify so he could explain what really happened but that counsel PageID #:
<pageID>
never told him he could decline to testify. He testified that counsel 
did not prepare him to testify. 
 
During cross-examination, the petitioner acknowledged that 
an attorney other than his trial counsel entered the transfer 
agreement to Circuit court. He said that he only remembered one 
time that trial counsel visited him in jail. He relied on trial counsel 
to file any necessary motions and was unaware of any motions that 
should have been filed. The petitioner agreed that he pulled the 
trigger that killed the victim but that it was not done intentionally. 
He also agreed that his testimony was the only way he could show 
the trial court that he did not intend to shoot or rob the victim. 
 
 Swader, 2009 Tenn. Crim. App. LEXIS 854, at *3-4. 
 
(R&R at 2-7). Next, the R&R—rep eating some of the information set forth above—described in 
broad strokes the course of this litigation through trial, state post -conviction relief proceedings, 
and the instant federal habeas action: 
 After a jury trial in 2004, Petitioner was convicted of one count each of first-
degree felony murder, second- degree murder, attempted especially aggravated 
robbery, and possession of a deadly weapon during the commission of an offense. 
Docket No. 1, p. 1. Petitioner’s murder convictions were merged, and he was 
sentenced to life. Swader, 2006 Tenn. Crim. App. LEXIS 109, at *1. The Petitioner 
was also sentenced to 10 years for the attempted especially aggravated robbery 
conviction and two years for the possession of a weapon convictions. Id. Petitioner 
directly appealed his convictions, raising the following issues: (1) the State 
committed reversible error by informing potential jurors during voir dire that the 
punishment for first- degree murder in this case was life with the possibility of 
parole; (2) the trial court erred in failing to suppress his statement to the police; and 
(3) the evidence was insufficient to support his convictions. Id. The Tennessee 
Court of Criminal Appeals affirmed the judgments of the trial court on February 6, 
2006. Id. at *32. The Petitioner then applied for leave to appeal to the Tennessee 
Supreme Court. Swader , 2006 Tenn. LEXIS 576. The Tennessee Supreme Court 
declined permission to appeal on June 26, 2006. Id. 
 
Subsequently, Petitioner filed a pro se petition for post-conviction relief on 
May 21, 2004. Docket No. 51, p. 3. After the appointment of counsel, the Petitioner 
filed an amended petition for post -conviction relief. Docket No. 51, p. 3. On May 
12, 2008, the trial court denied the Petitioner post-conviction relief. Docket No. 51, 
p. 3. On October 7, 2009, the Tennessee Court of Criminal Appeals affirmed the 
trail court’s denial of post-conviction relief, finding a claim of sufficiency of the 
evidence was no t cognizable for post -conviction relief, counsel rendered 
constitutionally effective assistance, and that the Petitioner waived the issue of PageID #:
<pageID>
double jeopardy. Swader , 2009 Tenn. Crim. App. LEXIS 854, at *11. Petitioner 
then appealed to the Tennessee Supreme Court, but his appeals were denied on 
March 15, 2010, and February 24, 2014. Swader, 2010 Tenn. LEXIS 245; Swader, 
2014 Tenn. LEXIS 170. 
 
On May 13, 2013, Petitioner filed his “Petition Under 28 U.S.C. § 2254 for 
Writ of Habeas Corpus By a Person in State Custody.” Docket No. 1, p. 1. Petitioner 
was appointed counsel and supplemented his pro se petition with an amended 
petition on November 12, 2010. Docket No. 28, p. 5. Now pending before this Court 
is Petitioner’s second amended petition filed on May 29, 2013. Docket No. 51, p. 
1. Petitioner raises the five following claims: (1) he had constitutionally ineffective 
assistance of counsel; (2) the State’s withholding of material evidence constituted 
a violation of Brady v. Maryland; (3) the State knowingly proffered false testimony; 
(4) the Petitioner’s confession was involuntary and should have been suppressed; 
and (5) that the Petitioner’s sentence of life imprisonment constituted cruel and 
unusual punishment. Docket No. 51, p. 6- 11. Respondent filed an answer on July 
1, 2013. Docket No. 58, p. 1. 
 
On July 10, 2013, Petitioner moved to stay the instant habeas proceedings 
to exhaust his state remedies before seeking federal habeas review. Docket No. 64. 
Specifically, he sought to file a motion in state court to reopen his post -conviction 
proceedings and present his fifth claim under Miller v. Alabama, 567 U.S. 460, 132 
S. Ct. 2455, 183 L. Ed. 2d 407 (2012). Docket No. 64. The motion was granted, 
and the instant proceeding was administratively closed. Docket No. 67. After filing 
his motion in the Circui t Court for Rutherford County, the trial court denied his 
motion on the grounds that Miller was inapplicable to the Petitioner’s original 
sentence of life with the possibility of parole. Docket No. 81- 1, p. 32. Petitioner 
then filed an application for permission to appeal the trial court’s denial of his 
motion but was denied on the same grounds by the Tennessee Court of Criminal 
Appeals on September 24, 2013. Docket No. 81- 3, p. 1. Petitioner filed an 
application for permission to appeal with the Tennessee Supreme Court which was 
ultimately denied on February 24, 2014. Docket No. 81- 6; Swader, 2014 Tenn. 
LEXIS 170. 
 
On August 17, 2023, Petitioner filed a supplemental brief in support of the 
amended petition for a writ of habeas corpus. Docket No. 141. Respondent filed a 
supplemental brief in opposition on September 18, 2023. Docket No. 142. 
Petitioner filed a reply in response to the Res pondent’s supplemental brief on 
October 5, 2023. Docket No. 145. 
 
(R&R at 8-10). 
In order to place in context the R&R’s recommendations and reasoning, it is helpful to 
discuss first various legal principles concerning claims of ineffective assistance of counsel, then PageID #:
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the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 
Stat. 1214 (1996). The Court begins with the former topic. 
LEGAL PRINCIPLES REGARDING INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIMS 
 
The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall 
enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. The 
Supreme Court held in Strickland v. Washington, 466 U.S. 668 (1984),5 that “the right to counsel 
is the right to the effective assistance of counsel.” Id. at 686 (quoting McMann v. Richardson, 397 
U.S. 759, 771 n.14 (1970)); see also id. at 685 (“An accused is entitled to be assisted by an attorney, 
whether retained or appointed, who plays the role necessary to ensure that the trial is fair.”). “An 
ineffective assistance claim has two components: A petitioner must show that counsel’s 
performance was deficient, and that the deficiency prejudiced the defense.” Wiggins v. Smith, 539 
U.S. 510, 521 (2003) (citation omitted). 
Under Strickland, the deficiency of counsel’s perform ance is “measured against an 
‘objective standard of reasonableness’ ‘under prevailing professional norms.’” Rompilla v. Beard, 
545 U.S. 374, 380 (2005) (quoting Strickland, 466 U.S. at 687, 688); see also Wiggins, 539 U.S. 
at 521 (“ [T]he proper measure of attorney performance remains simply reasonableness under 
prevailing professional norms.” (quoting Strickland, 466 U.S. at 688)). “[I]n applying Strickland . 
. . , hindsight is discounted by pegging adequacy to ‘counsel’s perspective at the time’ . . . decisions 
are made and by giving a ‘heavy measure of deference to counsel’s judgments[.]’” Rompilla, 545 
U.S. at 381 (quoting Strickland, 466 U.S. at 689, 691). 
 
5 Notably, Strickland happened to be a capital case, although it is apparent that its teachings apply likewise 
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Strickland made clear, among other things, that counsel has a duty to investigate matters 
relevant to a case as appropriate. See 466 U.S. at 690 -91. Strickland then noted that counsel’s 
strategic choices are “virtually unchallengeable” when they are “made after thorough investigation 
of law and facts relevant to plausible options.” Id. 
LEGAL STANDARDS, INCLUDING EXHAUSTION AND 
PROCEDURAL DEFAULT, GOVERNING HABEAS RELIEF UNDER THE AEDPA 
 Petitioner’s right to relief under the Amended Petition is subject to 28 U.S.C. § 2254(d), as 
amended by AEDPA. As amended, that subsection provides: 
[a]n 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. 
 
28 U.S.C. § 2254(d)(1)-(2). As the undersigned noted last year, quoting with approval a report and 
recommendation in a habeas action under 28 U.S.C. § 2254: 
The Supreme Court has repeatedly held “that AEDPA, by setting forth [these] 
necessary predicates before state- court judgments may be set aside, ‘erects a 
formidable barrier to federal habeas relief for prisoners whose claims have been 
adjudicated in state court.’” White v. Wheeler, 577 U.S. 73, 77 (2015) (quoting Burt 
v. Titlow, 571 U.S. 12, 19 (2013)). 
 
Under § 2254(d)(1), a state court’s decision is “contrary to” clearly 
established federal law only “if the state court applies a rule different from the 
governing law set forth in” the Supreme Court’s holdings “or if it decides a case 
differently than” the Supreme Court has “on a set of materially indistinguishable 
facts.” Bell v. Cone, 535 U.S. 685, 694 (2002) (citing Williams v. Taylor, 529 U.S. 
362, 405–06 (2000)). A state court’s “decision is an unreasonable application of 
[the Supreme Court’s] clearly established precedent if it correctly identifies the 
governing legal rule but applies that rule unreasonably to the facts of a particular 
prisoner’s case[.]” White v. Woodall, 572 U.S. 415, 426 (2014). To be actionable PageID #:
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under § 2254(d)(1), a state court’s unreasonable application of Supreme Court 
precedent “‘must be objectively unreasonable, not merely wrong; even clear error 
will not suffice.’” Woods v. Donald, 575 U.S. 312, 316 (2015) (quoting Woodall , 
572 U.S. at 419); see also Williams, 529 U.S. at 411 (“[A] federal habeas court may 
not issue the writ simply because it concludes in its independent judgment that the 
relevant state-court decision applied clearly established federal law erroneously or 
incorrectly.”). Instead, the petitioner “must show that the state court’s ruling on the 
claim being presented in federal court was so lacking in justification that there was 
an error well understood and comprehended in existing law beyond any possibility 
for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). 
 
Under § 2254(d)(2), habeas relief is available if the state court’s decision 
“was based on an unreasonable determination of the facts in light of the evidence 
presented in the State court [] proceeding.” 28 U.S.C. § 2254(d)(2). The statute 
provides that a state court’s factual determinations “shall be presumed to be 
correct” and the petitioner bears “the burden of rebutting the presumption of 
correctness by clear and convincing evidence.” Id. § 2254(e)(1); see also Davis v. 
Ayala, 576 U.S. 257, 271 (2015) (“ State-court factual findings . . . are presumed 
correct; the petitioner has the burden of rebutting the presumption by ‘clear and 
convincing evidence.’” (quoting Rice v. Collins, 546 U.S. 333, 338–39 (2006))). 
 
AEDPA thus “imposes a highly deferential standard for evaluating state -
court rulings and demands that state -court decisions be given the benefit of the 
doubt.” Hardy v. Cross, 565 U.S. 65, 66 (2011) (quoting Felkner v. Jackson , 562 
U.S. 594, 598 (2011)). The AEDPA “standard is difficult to meet . . . because it 
was meant to be.” Harrington, 562 U.S. at 102; see also Burt , 571 U.S. at 20; 
Metrish v. Lancaster, 569 U.S. 351, 357–58 (2013); Cullen v. Pinholster, 563 U.S. 
170, 181 (2011). The statute enforces the principle “that habeas corpus is a ‘guard 
against extreme malfunctions in the state criminal justice systems,’ not a substitute 
for ordinary error correction through appeal.” Harrington, 562 U.S. at 102–03 
(quoting Jackson v. Virginia , 443 U.S. 307, 332 n.5 (1979) (Stevens, J., 
concurring)); see also Woods, 575 U.S. at 316. 
 
AEDPA also imposes a “total exhaustion requirement,” providing that 
“‘[a]n application for a writ of habeas corpus . . . shall not be granted unless it 
appears that . . . the applicant has exhausted the remedies available in the courts of 
the State’” with respect to each claim, or such remedies are no longer available. 
Rhines v. Weber, 544 U.S. 269, 274 (2005) (second and third alterations in original) 
(quoting 28 U.S.C. § 2254(b)(1)(A)); see also 28 U.S.C. § 2254(c) (“An applicant 
shall not be deemed to ha ve exhausted the remedies available in the courts of the 
State . . . if he has the right under the law of the State to raise, by any available 
procedure, the question presented.”). This “exhaustion doctrine is designed to give 
the state courts a full and fair opportunity to resolve federal constitutional claims 
before those claims are presented to the federal courts[.]” O’Sullivan v. Boerckel , 
526 U.S. 838, 845 (1999). AEDPA therefore requires a petitioner to “properly 
present[] his or her claims through one ‘complete round of the State’s established PageID #:
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appellate review process.’” Woodford v. Ngo, 548 U.S. 81, 92 (2006) (quoting id. 
at 845). A petitioner incarcerated in Tennessee exhausts all available state remedies 
under AEDPA once the TCCA denies a claim of error. Adams v. Holland, 330 F.3d 
398, 402 (6th Cir. 2003) (quoting Tenn. Sup. Ct. R. 39 (exhaustion of remedies)). 
 
“Just as in those cases in which a state prisoner fails to exhaust state 
remedies, a habeas petitioner who has failed to meet the State’s procedural 
requirements for presenting his federal claims has deprived the state courts of an 
opportunity to address t hose claims in the first instance.” Coleman v. Thompson , 
501 U.S. 722, 731–32 (1991). Under the doctrine of procedural default, a petitioner 
who may no longer present claims in state court because he or she failed to meet 
state procedural requirements must “demonstrate cause for his [or her] state- court 
default of any federal claim, and prejudice therefrom, before the federal habeas 
court will consider the merits of that claim.” Edwards v. Carpenter, 529 U.S. 446, 
451 (2000). The one exception to this doctrine “is the circumstance in which the 
habeas petitioner can demonstrate a sufficient probability that [the federal habeas 
court’s] failure to review his [or her] federal claim will result in a fund amental 
miscarriage of justice.” Id. 
 
Davidson v. Genovese , No. 3:16- CV-01334, 2025 WL 3188753, at *3-4 (M.D. Tenn. Nov. 14, 
2025). Regarding the procedural default doctrine in particular, it can alternatively be described (at 
least in part) as follows: “a federal court may not review federal claims that . . . the state court 
denied based on an adequate and independent state procedural rule.” Davila v. Davis , 582 U.S. 
521, 527 (2017) (citations omitted). 
And regarding the interplay between the doctrine of procedural default and the requirement 
of exhaustion, it is worth noting that a claim also may be “technically exhausted, yet procedurally 
defaulted” where “a petitioner fails to present a claim in state court, but that remedy is no longer 
available to him.” Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015) (citing Jones v. Bagley, 
696 F.3d 475, 483-84 (6th Cir. 2012)). The point here is that such a claim is treated as exhausted 
even though it was neve r presented to the state courts and, in the federal habeas action, is 
susceptible to a challenge based not on failure to exhaust but rather on procedural default.
6 
 
6 The Supreme Court has discussed the points of similarity between these two concepts as follows: PageID #:
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In Martinez v. Ryan, 566 U.S. 1, 17 (2012), the Supreme Court held that ineffective 
assistance of post -conviction counsel may, in some circumstances, establish cause to overcome 
the procedural default of a substantial claim of ineffective assistance of trial counsel (at times 
herein, “IATC”). 566 U.S. at 17. In particular, it can establish cause “[w]here, under state law, 
claims of ineffective assistance of trial counsel must be raised in an initial -review collateral 
proceeding . . . .” Id. “The following year, the Supreme Court held that Martinez applies not only 
in states that prohibit petitioners from raising ineffective -assistance claims on direct appeal, but 
also to those whose legal systems ‘make it virtually impossible’ to do so.” See Zagorski v. Mays, 
No. 3:99- cv-01193, 2018 WL 4352705, at * 3 (M.D. Tenn. Sept. 12, 2018) (citing Trevino v. 
Thaler, 569 U.S. 413, 417 (2013)). And “the Sixth Circuit has held that this Martinez/ Trevino 
exception applies in Tennessee. ” Id. (citing Sutton v. Carpenter, 745 F.3d 787, 795-96 (6th Cir. 
2014)). So, ineffective assistance of post-conviction counsel can constitute cause for purposes of 
excusing a procedural default . However, precedent in this circuit is clear that Martinez does not 
apply to excuse (based on post -conviction counsel’s ineffectiveness) the procedural default of 
claims other than claims of ineffective assistance of counsel at trial. See Hodges v. Colson, 727 
F.3d 517, 531 (6th Cir. 2013). As to claims that are within the scope of Martinez— i.e., assertions 
that post -conviction counsel’s ineffectiveness constitutes cause for purposes of excusing a 
procedural default of a claim of IATC, the Sixth Circuit has noted: 
 
[The doctrine of procedural default] is an important corollary to the exhaustion 
requirement. Just as in those cases in which a state prisoner fails to exhaust state remedies, 
a habeas petitioner who has failed to meet the State’s procedural requirements for 
presenting his federal claims has deprived the state courts of an opportunity to address the 
merits of those claims in the first instance. The procedural default doctrine thus advances 
the same comity, finality, and federalism interests advanced by the exhaustion doctrine. 
 
Davila, 582 U.S. 521, 527-28 (citations and internal quotation marks omitted). PageID #:
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As to these claims, the district court should determine . . .: (1) whether state 
post conviction counsel was ineffective; and (2) whether [ the p etitioner’s 
underlying] claims of ineffective assistance of [trial] counsel were “ substantial” 
within the meaning of Martinez, Sutton, and Trevino. Questions (1) and (2) 
determine whether there is cause. The next question is (3) whether [ the petitioner] 
can demonstrate prejudice. Finally, the last step is: (4) if the district court concludes 
that [the p etitioner] establishes cause and prejudice as to any of his claims, the 
district court should evaluate such claims on the merits. 
 
Atkins, 792 F.3d at 660 (internal citations omitted). The claim fails for lack of cause unless the 
petitioner can establish th at both question (1) and question (2) should be answered in the 
affirmative—in which case (but only in which case) the next question is whether the petitioner can 
establish prejudice. Id. For purposes of question (2) above, a “substantial claim” is a claim that has 
some merit or some factual support. Landrum v. Anderson, 813 F.3d 330, 335 (6th Cir. 2016). 
Manifestly, the first two claims are related in that to the extent that a particular claim of IATC is 
not “substantial” (i.e., lacks strength), post -conviction counsel is less likely to have been 
ineffective in not pressing the claim. See Smith v. Carpenter, No. 3:99-cv-0731, 2018 WL 317429, 
at *2 (M.D. Tenn. Jan. 8, 2018) (noting that the first prong of Atkins “is necessarily connected to 
the strength of the claim [post-conviction counsel] failed to raise”). 
 Significantly, in Shinn v. Ramirez , 596 U.S. 366 (2022),
 the Supreme Court held that in 
determining whether there is cause under Martinez , a federal habeas court generally may not 
consider evidence outside the state court record. Id. at 371. That is, in considering whether there 
is ineffective assistance of postconviction counsel that suffices under Martinez to establish cause 
to excuse a procedural default of a claim of ineffective assistance of (trial) counsel, a federal habeas 
court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state-
court record “unless [the petitioner] satisfies one of two narrow exceptions,” neither of which are 
applicable in the present case. Id. (citing 28 U.S.C. § 2254(e)(2)(A)). PageID #:
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It bears mentioning just how wrong a state court’s decision must be to leave the door open 
for federal habeas relief. “[I]n order to obtain federal habeas relief, a state prisoner must show far 
more than clear error.” Klein v. Martin, 607 U.S. 213, 220 (2026) (internal quotation marks and 
citation omitted). 
One final point regarding the AEDPA bears mentioning. “AEDPA requires the petitioner 
to prove that the [state court’s] error is ‘an unreasonable application of [] clearly established 
Federal law, as determined by the Supreme Court of the United States.’” Davenport v. MacLaren, 
975 F.3d 537, 546 (6th Cir. 2020) (emphasis added) (quoting § 2254(d)(1)). The Court discerns 
that in practical application, a petitioner meets this “burden” of “prov[ing]” the unreasonableness 
of the state court’s application of clea rly established federal law whenever the court is able to 
clearly perceive such unreasonableness, based either on the petitioner’s argument or otherwise. 
THE R&R’s RECOMMENDATIONS 
As indicated in part above, the Magistrate Judge was tasked with addressing the following 
five claims: 
 (1) Petitioner was denied effective assistance of counsel (allegedly, in the particular ways 
identified below); 
(2) the State’s (alleged) withholding of material evidence constituted a violation of Brady 
v. Maryland; 
(3) the State knowingly proffered false testimony; 
(4) Petitioner’s confession was involuntary and should have been suppressed; and 
(5) Petitioner’s sentence of life imprisonment constituted cruel and unusual punishment in 
violation of the Eight Amendment because it was imposed for an offense pursuant to a “sentencing 
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upon conviction” of the offense, and such a scheme is—under Miller v. Alabama, 132 S. Ct. 2455 
(2012)—violative of the Eighth Amendment when (and as) “applied to defendants who were 
juveniles at the time the offense was committed.” (Doc. No. 51 at ¶ 57). 
In the R&R, the Magistrate Judge recommends that the Court deny in full Petitioner’s 
request for habeas corpus relief with respect to each and every claim. 
As for the first claim, the Magistrate Judge found that only two of the subclaims—that trial 
counsel was ineffective in (1) failing to meet with him a sufficient number of times and (2) failing 
to file any written motions before trial—had been properly raised in state court and not been 
procedurally defaulted. (R&R at 14). The Magistrate Judge found that “ any other allegations of 
ineffective assistance are procedurally defaulted and cannot be considered on the merits. . . 
[a]bsent a showing of cause excusing the default[.]” (R&R at 14). 
As for two of the claims that were procedurally defaulted— namely that trial counsel was 
ineffective (1) in failing to effectively challenge the voluntariness of either Petitioner’s Miranda 
waiver or his subsequent custodial statement and (2) when litigating the oral motion to suppress in 
that counsel failed to make a record of factors that would have refuted the volunt ariness of 
Petitioner’s waivers—the Magistrate Judge found that Petitioner had failed to show the requisite 
cause to excuse the procedural default under Martinez; he found that Petitioner had established 
neither that the first question under Atkins nor that the second question under Atkins should be 
answered in the affirmative. (Id. at 17-20). As for a third claim that was procedurally defaulted—
that trial counsel was ineffective in failing to contest the Petitioner’s transfer from juvenile court 
to adult court—the Magistrate Judge determined that Martinez was inapplicable because “the Sixth 
Circuit has held that the Martinez exception does not apply to claims of ineffective counsel during 
juvenile transfer proceedings.” (Id. at 20-21) (citing Atkins, 792 F.3d at 663). As for a fourth claim PageID #:
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that was procedurally defaulted —that trial counsel was ineffective in failing to hire an expert 
witness—the Magistrate Judge found that “[u] nlike [with] Petitioner’s other ineffective assistance 
claims, he does not raise the Martinez exception” in connection with this claim and thus had no 
excuse for the procedural default , and that in any event “Petitioner has failed to demonstrate that 
trial counsel performed deficiently ” in this regard. ( Id. at 21). And as for seven more specific 
claims that were procedurally defaulted, the Magistrate Judge found that “ Petitioner has not 
provided an argument [under Martinez or otherwise ] to establish cause for the default or to 
demonstrate actual prejudice . . . for these specific allegations by asserting that post conviction 
counsel was ineffective for failing to raise them” and that in any event, “Petitioner has not provided 
supporting facts in his supplemental brief or second amended petition to substantiate the merits of 
these claims.” (Id. at 23). 
As for the two claims of ineffective assistance of counsel that had not been procedurally 
defaulted, the Magistrate Judge analyzed them on the merits. As for the first— that trial counsel 
was ineffective in failing to spend sufficient time preparing Petitioner to testify at trial—the 
Magistrate Judge first noted that the Tennessee Court of Criminal Appeals rejected the claim (on 
the merits) on the grounds that Petitioner had failed to show how additional meetings with counsel 
would have changed the trial’s outcome, then found that this determination by the Tennessee Court 
of Criminal Appeals was neither an unreasonable application of federal law nor based on an 
unreasonable factual finding. (Id. at 23-24). As for the second—that trial counsel was ineffective 
for failing to file any written motions —he found (albeit without actually discussing the state 
court’s resolution of this issue) that the state court did not unreasonably appl y clearly established 
law, because (in his view) trial couns el’s decision not to file written motions was a strategic one 
inasmuch as (as far as Petitioner had shown) the potential motions cited in his habeas petition PageID #:
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would not have had any merit and trial counsel ’s testimony established that he “ assessed the 
circumstances and determined that the benefits of the agreement with the State [not to file any 
written motions] outweighed the consequences.” (Id. at 25-26). 
As for Petitioner’s second claim— that the State withheld material evidence in violation of 
Brady—the Magistrate Judge found that the claim was procedurally defaulted because it was not 
raised in state court. ( Id. at 26). The Magistrate Judge further found that Plaintiff had not 
established the recognized grounds for cause for excusing a defaulted Brady claim, i.e., that the 
reason the petitioner did not develop claim-supporting facts in state -court proceedings was the 
State’s suppression of the relevant evidence. (Id. at 27). 
As for Petitioner’s third claim— that the State knowingly proffered false testimony (of 
Jennifer Blackwell) — the Magistrate Judge found that the claim was procedurally defaulted 
because it was not raised in state court. ( Id. at 28-29). The Magistrate Judge further found that 
Petitioner “has not provided any argument to excuse this default for cause and has thus failed to 
overcome procedural default [and, likewise] does not claim actual prejudice, nor could he.” (Id. at 
29). 
The Magistrate Judge found that the fourth claim —that Petitioner’s confession was 
involuntary and should have been suppressed— was properly exhausted and then the Magistrate 
Judge proceeded to the merits of the claim, appl ying AEDPA deference to that claim. T he 
Magistrate Judge found that Petitioner was unentitled to relief on that claim because (in his view) 
the Tennessee Court of Criminal Appeals (“TTCA”) did not unreasonably apply the law or make 
an unreasonable factual determination in affirming the trial court’s decision not to suppress 
Petitioner’s statement. (Id. at 29-30). PageID #:
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The Magistrate Judge found that the fifth claim —that Petitioner’s sentence of life 
imprisonment constituted cruel and unusual punishment —was properly exhausted and then the 
Magistrate Judge proceeded to the merits of the claim. (Id. at 30-31). In addressing the merits, the 
Magistrate Judge did not expressly apply AEDPA deference, perhaps because he believed that no 
deference to the TCCA’s ruling was necessary to uphold the TCCA’s ruling that Miller was simply 
inapplicable to Petitioner’s sentence—life imprisonment with the possibility of parole (although 
not until service of 51 years of imprisonment, according to Petitioner). Addressing the fifth claim 
on the merits as if entirely de novo, the Magistrate Judge found—as had the TCCA —that Miller 
is inapplicable to Petitioner’s sentence. ( Id. at 31 -32). T he Magistrate Judge first effectively 
acknowledged that Miller is inapplicable to sentences of life with the possibility of parole, then 
reasoned that Starks v. Easterling , 659 F. App’ x 277, 280-81 (6th Cir. 2016) teaches that a 
Tennessee state court does not make a decision that is contrary to, or involves an unreasonable 
application of, clearly established law when it holds that Miller is inapplicable to a sentence of life 
with the possibility of parole even assuming that the petitioner’s life sentence functionally equates 
to life without parole— i.e., if the petitioner will not become parole eligible until after the petitioner 
is actuarially (statistically) likely to have died, i.e., exceeds his life expectancy.7 (R&R at 31-32). 
OBJECTIONS 
 In his Objections, Petitioner objects to three portions (and only three portions)8 of the R&R. 
First, he objects to the Magistrate Judge’s recommendation that Petitioner’s “suppression-related 
 
7 Here, Petitioner alleged that that his life expectancy is 70.6 years and that he will be ineligible for parole 
until age 74. (Doc. No. 51 at ¶¶ 54 -55). Relying on those allegations, Petitioner asserts that he “does not 
become eligible for release on parole until he exceeds his life expectancy [and thus] is serving a de facto 
sentence of life without the possibility of parole.” (Id. at ¶ 56). 
 
8 It appears that Petitioner’s approach was to identify his three strongest objections and forgo weaker 
objections. Petitioner is to be commended for this approach, as it focuses the Court’s attention on the PageID #:
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claims for relief be denied ,” arguing that “[t]rial counsel was ineffective in failing to investigate 
suppression issues critical to [Petitioner]’s defense and in failing to file a necessary pre-trial motion 
to suppress [Petitioner]’s involuntary custodial statement.” (Doc. No. 155 at 2). Second, he objects 
to the Magistrate Judge’s recommendation that Petitioner’s “trial testimony preparation claims for 
relief be denied ,” arguing that “[t] rial counsel was ineffective in failing to sufficiently and 
adequately prepare [Petitioner], then 17, before he testified and was subject to cross examination 
at trial.” (Id. at 5). 
Petitioner’s third o bjection is, unfortunately, rather difficult to decipher. In its entirety 
(including its Roman-numerated header and the underlying text), the objection and the discussion 
in support of it reads as follows: 
C. The Report and Recommendation’s conclusion regarding the 
testimony preparation claims (II(A)) is erroneous.4 
 
 Mr. Swader acknowledges that Martinez v. Ryan , 132 S. Ct. 1309 (2012) 
does not excuse his default under Atkins v. Holloway, 792 F.3d 654 (6th Cir. 2015). 
He maintains that Atkins was wrongly decided and also maintains this claim for 
future appellate review, either by the en banc Sixth Circuit or the Supreme Court. 
For these reasons, he maintains that the Magistrate erred in denying this claim. 
 
(Doc. No. 155 at 7) (footnote in original). As for the footnote (numbered 4), it reads in its entirety 
as follows: “ This claim was presented in Claim 1 (paragraphs 28, 29, and 30) of [Petitioner]’s 
Second Amended Petition [what the Court herein has called simply the ‘Amended Petition’]. (D.E. 
51.)” (Doc. No. 155 at 7 n.4). The Court simply cannot tell what claims Petitioner actually is 
referring to here. As an initial matter, the Court does not comprehend the reference to “II(A).” The 
R&R has no part “II(A),” and what it does have—a part “II” —is merely a statement of procedural 
history and does not even mention Martinez or Atkins. (R&R at 8 -10). Likewise, the Amended 
 
objections most likely to succeed without diverting the Court’s attention to objections that are especially 
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Petition has no part “II(A),” and what i t does have —a part “II” — is merely a statement of 
jurisdiction and venue and does not even mention Martinez or Atkins or for that matter any claims. 
(Doc. No. 51 at ¶¶ 7-8). 
 Moreover, the claims are identified in the heading as “testimony preparation claims.” One 
might think that this is a reference to the same claims implicated by the second objection, which 
likewise are identified in the second objection as “testimony preparation claims,” (Doc. No. 155 
at 5), and in particular claims that “[t]rial counsel was ineffective in failing to sufficiently and 
adequately prepare [Petitioner], then 17, before he testified . . . .” (Id.). But the second objection 
refers to these claims in terms not of “II(A)” but rather II(C)” —a reference that the Court finds 
just as mysterious as the inscrutable reference to II(A) but one that in any event is not the same as 
the reference to “II(A).” Furthermore, the footnote (numbered 4) alludes to paragraphs of the 
Amended Petition that relate not to “testimony preparation claims” (however that descriptor of 
claims may be construed) but to “ [t]rial counsel fail[ing] to file any written motions, ” (Doc. No. 
51 at ¶ 28), “[t] rial counsel fail [ing] to investigate the facts and circumstances of the crime and 
mitigating evidence in preparation for the transfer hearing, the trial, and the sentencing hearing,” 
(id. at ¶ 29), and “[t]rial counsel fail[ing] to contest the transfer of [Petitioner]’s case from juvenile 
to adult court,” (id. at ¶ 30). 
Finally, in stark contrast to the header for this objection, the text underlying the header says 
nothing at all about trial preparation claims, or indeed any substantive claims, in particular. Instead, 
it refers only to the rules (as articulated in Martinez and Atkins) for excusing the default of certain 
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 Given this confusion,9 the Court is relegated to making of this objection whatever it can. 
So doing, the Court will construe it in a manner that it is confident will serve Petitioner’s purpose 
of stating the objection. That is, the Court will treat this objection as an overarching objection to 
each instance of the Magistrate Judge’s invocation of the Sixth Circuit’s opinion in Atkins in 
deciding that Petitioner had not established cause (in the form of ineffective assistance of post -
conviction counsel) for the procedural default of claims of ineffective assistance of trial counsel. 
DISCUSSION 
The Court above has described not just the Magistrate Judge’s findings as to which 
objection has been made, but also the rationale for those findings. Describing such rationale is 
helpful for placing into context the issues raised for the Court via Petitioner’s Objections. It is also 
helpful for indicating potential resolutions of those issues; that is, to the extent that the Court ends 
up agreeing with the Magistrate Judge’s rationale, his rationale has indicated the Court’s view of 
how the issues raised b y the objections should be resolved. But t he Court notes that under 28 
U.S.C. § 636(b), its task is not actually to critique, or to approve or disapprove, the rationale of the 
Magistrate Judge; and its task certainly is not to decide whether the Magistrate Judge’s rationale 
was reasonable. Rather, its task is to “make a de novo determination of those portions of the report 
or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 
636(b)(1). And so that is what the Court will do below: provide a de novo review of the three 
issues as to which the Magistrate Judge made a recommendation to which Petitioner objected, 
without deferring to the Magistrate Judge’s decision in any way. 
 
9 In contrast to this confusion, Petitioner speaks with admirable clarity (and candor) in expressing her view 
about the Magistrate Judge’s application of Atkins: that such application was appropriate as the law now 
stands (with Atkins currently being good, and binding, law) but that Atkins was (according to Petitioner) 
wrongly decided and is subject to being overturned in the future, to Petitioner’s benefit. PageID #:
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The Court has reviewed the objections, the Magistrate Judge’s findings, and other relevant 
parts of the record, to assess de novo the parts of the R&R implicated by the Objections . On de 
novo review, the Court adopts those portions of the R&R to which objections have been made.10 
The Court will address each objection in turn. 
A. The Court adopts the Magistrate Judge’s recommended denial of Petitioner’s claim that 
trial counsel was ineffective in failing to investigate suppression issues and in failing 
to file a necessary pre- trial motion to suppress Petitioner’s (alleged) involuntary 
custodial statement. 
 
Via his first objection, Petitioner challenges the Magistrate Judge’s denial of relief on 
Petitioner’s “suppression-related claims .” As an initial matter, it is necessary to identify what 
claims Petitioner is referring to here. In one place, Petitioner suggests that the reference is to claims 
that that “[t]rial counsel was ineffective in failing to investigate suppression issues critical to 
[Petitioner]’s defense and in failing to file a necessary pre -trial motion to suppress [ Petitioner]’s 
involuntary custodial statement.” (Doc. No. 155 at 2). But the Court believes that Respondent has 
set forth the appropriate identification of the specific claims within the scope of this objection: 
Petitioner’s heading for this objection contains a footnote outlining the 
various “suppression -related claims”: The suppression -related claims “were 
presented in Claim 1 (paragraphs 26 and 28) and Claim 4 of [Petitioner]’s Second 
Amended Petition, (D.E. 51), and in Part B of his Supplemental Brief, (D.E. 141.).” 
(Id.) Those portions of Petitioner’s Second Amended Petition allege: (1) counsel 
was ineffective by not effectively challenging the voluntariness of Petitioner’s 
Miranda waiver and confession; (2) counsel was ineffective by not filing any 
written motions other than a motion for discovery; and (3) Petitioner’s waiver and 
confession were involuntary. 
 
(Doc. No. 159 at 3). 
As to the third claim, as noted above, the Magistrate Judge first observed that the Tennessee 
Court of Criminal Appeals on direct appeal had affirmed the trial court’s decision not to suppress 
 
10 It would be fair to characterize the Court’s decision also as an overruling of Petitioner’s objections, but 
as noted above, under the law, the operative decision of the Court is to adopt on de novo review the portions 
of the R&R to which objection has been made. PageID #:
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Petitioner’s statement, which disposed of the claim on the merits. (R&R at 29). Then the Magistrate 
Judge found that Petitioner had not shown—as required by the AEDPA —that in so doing, the 
TCCA had unreasonably applied the law or ma de an unreasonable factual determination. ( Id. at 
29-30). In his Objections, Petitioner does not even argue that he has met the standard required by 
the AEDPA with respect to this claim. At most, he argues only that the Magistrate Judge’s own 
analysis of the voluntariness of Petitioner’s confession was flawed; he does not argue that the 
TCCA’s analysis was wrong—let alone that it was so egregiously wrong as to trigger the standard 
for relief under the AEDPA. Klein, 607 U.S. at 220 (noting that in order to obtain federal habeas 
relief, a state prisoner must show far more than clear error ). And the Court has reviewed on its 
own the TCCA’s multi-page discussion of this issue (which is in its opinion on direct appeal, not 
post-conviction review), found at State v. Swader , No. M2005-00185- CCA-R3-CD, 2006 WL 
287384, at *7-9 (Tenn. Crim. App. Feb. 6, 2006) .11 The Court does not see anything in the 
application of the law or the determination of the facts that comes anything close to being so 
unreasonable as to go far beyond clear error. So, on de novo review of the third claim, the Court 
adopts the Magistrate Judge’s reasoning, finding it to be sound. 
 All of this can be said likewise for the claim that trial counsel was ineffective for not filing 
any written motions (including a written motion to suppress) (i.e., the second claim) . The 
Magistrate Judge noted throughout the R&R that the Tennessee Court of Criminal Appeals , on 
appeal from the trial court’s denial of post-conviction relief, had addressed this claim on the merits. 
(R&R at 7; 25-26). In fact, as the R&R implied, the TCCA denied this claim on the merits. Swader 
v. State, No. M2008-01021- CCA-R3-PC, 2009 WL 3199537, at *3 (Tenn. Crim. App. Oct. 7, 
 
11 The Court here gives the full citation (with a pinpoint citation) to th is opinion as found on Westlaw; the 
Magistrate Judge had cited to the opinion as found on LEXIS. PageID #:
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2009).12 The Magistrate Judge found that Petitioner had not shown—as required by the AEDPA—
that in so doing, the TCCA had unreasonably applied the law. (R&R at 25-26). In his Objections, 
Petitioner does not even argue that he has met the standard required by the AEDPA with respect 
to this claim. And the Court has reviewed the TCCA’s discussion of this issue (which is in its 
opinion on appeal of post-conviction review), which was as follows: 
[Petitioner’s] second claim is that counsel was ineffective for failing to file 
any written motions prior to trial. During the post-conviction hearing, trial counsel 
testified that he did not file written motions as part of his strategy of negotiation. 
Trial counsel testified that he reached an agreement that secured the State’ s 
withdrawal of its notice of enhancement factors in exchange for not filing for a 
continuance prior to trial. During the post -conviction hearing, the defendant 
testified that he did not know which motions should have been filed but believed 
that written motions would have benefitted him at trial. The petitioner has not 
demonstrated that the outcome of trial would have been different if written motions 
to suppress, to have the petitioner evaluated, to change venue, or to receive funds 
for experts had been filed. Therefore, he is not entitled to relief on this issue. 
 
Swader, 2009 WL 3199537, at *3. This explanation, though brief, appears perfectly reasonable. 
The Court is fully aware that “ [d]eference does not by definition preclude relief.” Miller-El v. 
Dretke, 545 U.S. 231, 240 (2005) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). But 
it makes the obtaining of relief a task fa r more daunting than it otherwise would be; after all, 
presumably it is rare indeed that a court gets a decision so wrong that it reflects “far more than 
clear error,” Klein, 607 U.S. at 220 (internal citation and quotations omitted), or is “so lacking in 
justification that there was an error well understood and comprehended in existing law beyond any 
possibility for fairminded disagreement,” Harrington v. Richter , 562 U.S. 86, 103 (2011). The 
Court does not see here anything in the application of the law (or for that matter the determination 
of the facts) that comes anything close to being so unreasonable as to go far beyond clear error. 
 
12 Again, the Court here gives the full citation (with a pinpoint citation) to this opinion as found on Westlaw; 
the Magistrate Judge had cited to the opinion as found on LEXIS. PageID #:
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And Petitioner makes no argument whatsoever specific to trial counsel’s failure to file written 
motions. 
 To the extent that Petitioner’s claim here concerns the failure to file a written motion to 
suppress his statement in particular, Petitioner fares no better. As indicated above, the Magistrate 
Judge treated this claim (at least to the extent that it was a claim separate from the claim concerning 
a failure to file any written motions generally) as procedurally defaulted. (R&R at 17-18). He then 
found that Petitioner had failed to show that the procedural default was excused under Martinez , 
inasmuch as the claim was not “substantial” as required by Atkins for excusal under Martinez; in 
so finding, the Magistrate Judge relied on information in the state -court record showing that 
“‘defense counsel [made] an oral motion for the trial court to suppress the appellant’s statement,’ 
which the trial court then considered on the merits [and that] [c]ounsel’s decision to proceed orally 
was made to avoid delaying trial and, as a result, reflects a strategic judgment rather than a 
deficiency in performance.” (Id. at 18). The Magistrate Judge also found, relatedly, that the failure 
to file a written suppression motion did not prejudice Petitioner (which would be required by Atkins 
for this alleged failure to constitute cause to excuse a procedural default under Martinez), because 
trial counsel did “rais[e] the suppression issue in a manner [i.e., orally] that allowed the court to 
consider it on the merits[.]” (Id.). 
 On de novo review, the Court adopts the Magistrate Judge’s reasoning, finding it to be 
sound. And, as the Court observed above, Petitioner makes no argument whatsoever that is specific 
to trial counsel’s failure to file written motions, and this observation applies to a written motion to 
suppress in particular. 
 That leaves only the claim that counsel was ineffective by not effectively challenging the 
voluntariness of Petitioner’s Miranda waiver and confession (i.e., first claim). The claim here PageID #:
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appears to be that trial counsel was ineffective in how he went about litigating the oral motion to 
suppress Petitioner’s statement; in the Objections, Petitioner complains that “[t]rial counsel did 
not present any evidence or cite to any case in support of this oral motion, made the morning of 
trial, and did not even provide the video evidence to the judge ,” thus leaving “ [t]he unredacted 
video of the interrogation [out] of the record.” (Doc. No. 155 at 3- 4). The Magistr ate Judge 
elaborated on Petitioner’s view as to how trial counsel was ineffective in this regard: 
 Petitioner contends that counsel’s failure to present key factors deprived the 
court of evidence demonstrating that he did not knowingly, intelligently, or 
voluntarily waive his Miranda rights. Docket No. 141, p. 24. Specifically, 
Petitioner asserts that trial counsel should have highlighted the following: (1) 
Petitioner was 16 years old at the time of the interrogation; (2) he was enrolled in 
special education classes, had various learning disabilities, and trial counsel failed 
to investigate evidence of potential intellectual impairments; (3) no evidence was 
introduced regarding any prior interactions with the criminal justice system that 
would have given him the knowledge to request an attorney; and (4) he repeatedly 
asked to see his mother. Docket No. 141, p. 24-27. 
 
(R&R at 18). 
 
Petitioner does not appear to dispute that this claim was procedurally defaulted and that it 
can be considered only if Martinez is satisfied. And Martinez is not satisfied unless the claim is 
“substantial.” The Magistrate Judge found that this claim was not substantial, because “the 
considerations raised by the Petitioner would not have altered the outcome of the motion to 
suppress [Petitioner’s statement].” (R&R at 19). In so concluding, the Magistrate Judge reasoned 
as follows: 
Although the Petitioner was sixteen years old at the time of the statement, 
the other considerations raised by the Petitioner do not equate to a finding that he 
was incompetent or unable to voluntarily waive his Miranda rights. First, the fact 
that the Petitioner was enrolled in special education classes and suffered from 
dyslexia and panic attacks are non-dispositive. As stated by the Sixth Circuit, “our 
sister circuits have found several instances where defendants, despite their mental 
retardation or low I.Q. were found to have waived their rights knowingly and 
intelligently.” Clark v. Mitchell, 425 F.3d 270, 284 (6th Cir. 2005). The Tennessee 
Court of Criminal Appeals determined that the Petitioner had the capacity to PageID #:
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understand the consequences of the waiver. He was not under the influence of drugs 
or alcohol, he conceded that he received his Miranda warnings, he read aloud the 
first line of his statement, he signed the waiver form, and he had previously been 
adjudicated delinquent for multiple offenses. Swader, 2006 Tenn. Crim. App. 
LEXIS 109, at *25-27. While his mother was not present, the absence of Petitioner's 
mother is non -dispositive because his history of drug use, disorderly conduct, 
curfew violations, driving without a license, and assault demonstrate an 
independence of mind and behavior, undermining any claim that his request to see 
his mother was akin to a request for counsel. Ashurst v. Morris, No. 89-3502, 1990 
U.S. App. LEXIS 16054, at *10 (6th Cir. Sep. 11, 1990) (holding that a juvenile’s 
request to call his mother did not invoke the right to counsel where his actions 
showed independence of mind and behavior, including drug use, late -night 
carousing, and holding a job). Conversely, the record demonstrates “the [Petitioner] 
possessed normal intelligence” and “had the capacity to understand the 
consequences of waiving his Miranda rights. Id. at *27. Therefore, even if the 
Petitioner’s trial counsel’s performance was deficient, the Petitioner cannot satisfy 
Strickland’s prejudice inquiry, as the arguments would not have altered the 
outcome. Carter, 910 F.3d at 841 (holding that an ineffective assistance claim is 
meritless when alternative arguments proffered by the defendant would not have 
changed the outcome). 
 
Consequently, Petitioner’s claim is without merit and fails to satisfy the first 
two prongs of the Atkins framework, preventing him from establishing cause to 
excuse his procedural default. 
 
(Id. at 19-20). Finding this reasoning persuasive, the Court adopts it on de novo review. Resisting 
this conclusion, Petitioner asserts: 
 The Magistrate further erred in considering the factors about whether a 
juvenile confession is voluntary on an individual basis, rather than cumulatively as 
required [by Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)] under a “totality 
of the circumstances” review. When considered together, the factors outlined in 
A.M. v. Butler, 360 F.3d 787, 799 800 (7th Cir. 2004), reveal that this issue would 
have been meritorious had it been properly investigated and litigated. . . . 
[Petitioner’s] age, his mental deficits, and the fact that his mother was not permitted 
to be present despite his requests, together made his statement involuntary. 
 
(Doc. No. 155 at 4) (citations omitted). 
The Court does not agree that the Magistrate Judge eschewed a “totality of the 
circumstances” approach or that Petitioner’s statement was involuntary (or, more to the point for 
the inquiry under Atkins, that Petitioner’s claim that his statement was an involuntary statement PageID #:
<pageID>
was “substantial” within the meaning of Martinez, Sutton, and Trevino). As Respondent suggests, 
(Doc. No. 159 at 5- 6), the Magistrate Judge expressly acknowledge d that a court must examine 
the “totality of the circumstances,” (R&R at 18 -19), then went on to describe a variety of 
circumstances that strongly supported a finding that the statement was made voluntarily. ( Id. at 
19-20). And the Court puts little stock in the fact that Petitioner was enrolled in special education 
classes and suffered from dyslexia and panic attacks. Dyslexia and enrollment in some sort of 
special education classes are not by themselves necessarily indicative whatsoever of an 
intelligence deficit, and the Court does not see where the record reflects that he experienced a 
panic attack at the time of giving his statement; even if the situation naturally would be quite 
stressful, that does not mean that it fostered in Petitioner a panic attack that somehow took away 
his intelligence, understanding, or free will. 
For all of the reasons stated above, the Court adopts the R&R with respect to those portions 
of it that are implicated by the first objection. 
B. The Court adopts the Magistrate Judge’s recommended denial of Petitioner’s “trial 
testimony preparation” claims. 
 
Petitioner’s next objection is to the Magistrate Judge’s recommended rejection of the claim 
that trial counsel was ineffective in failing to spend sufficient time preparing him to testify at trial. 
As noted above, the Magistrate Judge first noted that the Tennessee Court of Criminal Appeals 
rejected the claim on the merits, on grounds that Petitioner had failed to show how additional 
meetings with counsel would have changed the trial’s outcome ; the Magistrate Judge, applying 
AEDPA deference, then found that this determination by the Tennessee Court of Criminal Appeals 
was neither an unreasonable application of federal law nor based on an unreasonable factual 
finding. (R&R at 23-25). PageID #:
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As an initial matter, the Court notes that AEDPA deference indeed applies here, just as the 
Magistrate Judge indicated. But Petitioner does not appear to acknowledge, let alone deal with, 
that reality. As Respondent notes: 
Petitioner objects to the magistrate judge’s conclusion that the TCCA’s 
Strickland application was reasonable as to his IATC claim alleging a failure to 
prepare Petitioner to testify at trail. (ECF No. 155, PageID 2047 -49.) While the 
[M]agistrate [J]udge analyzed this claim through the lens of AEDPA, Petitioner’s 
objections appear to be framed under the assumption that the claim was 
procedurally defaulted and excused under Martinez. (ECF No. 155, PageID 2049 
(“This is a substantial, constitutional claim tha t would have affected the outcome 
of trial, and the Report and Recommendation erred in concluding that it be 
denied.”)). But as Respondent previously argued in his supplemental brief, (ECF 
No. 142, PageID 1985), and as correctly determined by the [M]agistrate [J]udge, 
this claim is subject to AEDPA deference because the TCCA rejected it on the 
merits, (ECF No. 147, PageID 2020). See Swader v. State , 2009 WL 3199537, at 
*3. 
 
(Doc. No. 159 at 7). 
Petitioner fails to surmount the challenge posed by the AEDPA. Indeed, as indicated above, 
Petitioner does not even try to do so . Instead of trying to show that the TCCA’s decision on this 
claim was egregiously wrong as contemplated by Klein and Harrington, he attempts merely to 
assert that the claim was “substantial” (or, at most, to assert that the claim was ultimately 
meritorious). And the Court does not perceive on its own, under de novo review, that the TCCA’s 
decision was of the kind that can trigger relief under the AEDPA. In its appeal affirming the trial 
court’s denial of post-conviction relief, the TCCA resolved this claim as follows: 
Here, the petitioner argues that trial counsel was not sufficiently prepared 
for trial. First, he argues that trial counsel failed to meet with the petitioner a 
sufficient number of times. The petitioner claims that trial counsel did not spend an 
adequate amount of time with him prior to trial; however, he fails to demonstrate 
that more frequent meetings would have produced a different outcome at trial. The 
petitioner acknowledged that he was responsible for shooting the victim but claims 
that it was an accident. The jury verdict reflects that they were persuaded to believe 
that the killing was not premeditated when the charge of first degree murder was 
rejected. Ultimately, the petitioner was convicted of first degree (felony) murder PageID #:
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and second degree murder. The petitioner has failed to demonstrate that trial 
counsel was ineffective for failing to meet with him more often. 
 
Swader, 2009 WL 3199537, at *3. The explanation here, though again brief, appears perfectly 
reasonable. And it certainly does not reflect “far more than clear error.” 
For all of the reasons stated above, the Court adopts the R&R with respect to those portions 
of it that are implicated by the second objection. 
C. As Petitioner concedes, the objection to the Magistrate Judge’s application of Atkins is 
without merit under present law, but Petitioner has preserved the objection to the 
application of Atkins in case Atkins is overruled. 
 
As suggested above, it is clear (and Petitioner does not dispute) that the Magistrate Judge’s 
application of the Sixth Circuit’s reported decision in Atkins , which to this day remains binding 
precedent for district courts within the Sixth Circuit, was appropriate. It appears that Petitioner has 
made this objection just in case, consistent with Petitioner’s view that Atkins was wrongly decided, 
Atkins is overruled either by the Sixth Circuit en banc or by the Supreme Court. 
Accordingly, the Court on de novo review finds nothing incorrect in the Magistrate Judge’s 
application of Atkins, but (as far as the Court is concerned) Petitioner has done all that he can to 
preserve, for potential future use, an objection to the application of Atkins based on the assertion 
that Atkins was wrongly decided. 
CONCLUSION 
After the required de novo review of the portions of the R&R (Doc. No. 147) to which an 
objection has been made , the Court adopts the R&R both as to those portions and as to all other 
portions. As a result, the Amended Petition (Doc. No. 51) is DENIED in full. 
The “Motion to Substitute” (Doc. No. 160) is GRANTED, and the Clerk is directed to 
substitute Shawn Phillips, Warden in place of Guy Bosch, Warden as the Respondent. PageID #:
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The court must issue or deny a certificate of appealability ( “COA”) when it enters a final 
order adverse to a Section 2254 petitioner. Rule 11, Rules Gov’g § 2254 Cases. A petitioner may 
not take an appeal unless a district or circuit judge issues a COA. 28 U.S.C. § 2253(c)(1); Fed. R. 
App. P. 22(b)(1). A COA may be issued only if the petitioner “has made a substantial showing of 
the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2). A “substantial showing” is made when 
the petitioner demonstrates that “reasonable jurists could debate whether (or, for that matter, agree 
that) the petition should have been resolved in a different manner or that the issues presented were 
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 
(2003) (citations and internal quotation marks omitted). “[A] COA does not require a showing that 
the appeal will succeed,” but courts should not issue a COA as a matter of course. Id. at 337. 
 In the view of the undersigned, Petitioner has not made a substantial showing of the 
denial of a constitutional right, in that reasonable jurists could not debate whether (or, for that 
matter, agree that) the Amended P etition should have been resolved in a different manner or that 
the issues presented were adequate to deserve encouragement to proceed further. Thus, the Court 
declines to issue a COA, but Petitioner may seek a COA directly from the Sixth Circuit Court of 
Appeals, which conceivably could have a different view. Rule 11(a), Rules Gov’g § 2254 Cases. 
The Clerk is DIRECTED to enter judgment under Rule 58 and close the file. 
 IT IS SO ORDERED. 
 
 
 
 ELI RICHARDSON 
 UNITED STATE DISTRICT JUDGE PageID #:
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