NOT RECOMMENDED FORFULL-TEXT PUBLICATION FileName: 14a0736n.06 Case No. 12-5980 

# FILED
UNITED STATES COURT OFAPPEALS 

## SEP 2 2 

# 2t4 FORTHE SIXTH CIRCUIT 

### DEBORAHS.HUNT,Clerk
RONNELL JASON LEBERRY, 

## ) ) Petitioner-Appellant, 

## ) ) ON APPEAL FROM THE v. 

## ) UNITED STATES DISTRICT 

## ) COURT FOR THE MIDDLE JOHN HOWERTON, Warden, 

## ) DISTRICT OF TENNESSEE 

### ) Respondent-Appellee. 

## ) ) 

## ) OPINION

BEFORE: COLE, ChiefJudge; BOGGS and STRANCH, Circuit Judges. COLE, ChiefJudge. A Tennesseejury convicted Ronnell Leberry ofaggravated assault, extortion, especially aggravated kidnapping, and two counts offacilitation to commit aggravated rape. After Leberry exhausted his state-court direct and collateral appeals, he filed a habeas corpus petition under 28 U.S.C. 

## § 2254, raising several claims, including that trial counsel was ineffective. Two distinct issues are before the court. The first is whether Leberry can show

cause and prejudice to excuse the procedural default ofcertain ineffective-assistance-of-counsel claims. UnderMartinez v. Ryan, 132 S. Ct. 1309 (2012), and Trevino v. Thaler, 133 5. Ct. 1911 (2013), Leberry can establish cause, but the district court did not determine ifLeberry could demonstrate prejudice to overcome his procedural default. Therefore, we reverse and remand this issue to the district court to consider whether Leberry can establish prejudice. The secondCaseNo. 12-5980 Leberryv. Howerton matter before the court is whether one particular ineffective-assistance-of-counsel claim—that trial counsel was ineffective for failing to request an accomplicejury instruction—can succeed
on the merits. Because the state court’s decision on this claim was not contrary to or an unreasonable application offederal law, we affirmthe district court’s orderdenying habeas relief
onthe accomplicejury instructionclaim. I. BACKGROUND Demetris Grant and the victim in this case worked together at a computerparts store and often car-pooled to work. One Saturday, the victim was supposed to take Grantto work, but she did not do so. The next day, Grant and herboyfriend, petitionerRonnell Leberry, confrontedthe victim at her apartment. Grant warned the victim that she was going to “kick [her] ass” for not taking her to work. Grant made good on this threat by hitting and kicking the victim and terrorizing her with a serrated knife. The situation quickly escalated. Either Grant or Leberry told the victim to undress and lie down on her back, and her attackers took turns heating a fork

over the stove and burning the victim’s breasts and vagina. Then, either Leberry or Grant inserted amop handle into the victim’s vagina. Grant and Leberry also forcedthe victimto write

a note stating that she owed them two hundred and fifty dollars and that they could take her car
as collateral until she repaidthem. Against her will, Leberry then transported the victim to Grant’s apartment, announcing upon their arrival that anyone in the neighborhood who wanted oral sex should come there. Once inside, the victim was again forced to undress and have sex with multiple men. She testifiedthat Grant andLeberry made her dojumpingjacks, sit-ups, and stand inthe cornerwith

one leg raised, all ofwhich she did because her life was threatened.” The episode finally ended when Grantand Leberry gave the victimpermissionto leave.

-2-CaseNo. 12-5980 Leberry v. Howerton Grant and Leberry were indicted on multiple charges, but before trial, Grant agreed to testify againstLeberry in exchange for areduced sentence. At trial, Grant implicated Leberry in every part ofthe attack. She testified that it was Leberry who made the victim get undressed; Leberry who burned herbreasts and vagina with a hot fork; Leberry who twice inserted the mop into the victim’s vagina; and Leberry who drove herto another location to have sex with other men. Grant admitted only to heating the forkthe firsttimebutdeniedburning the victimwith it. Grant was not the only person to incriminate Leberry. One ofthe victim’s neighbors observed the victim and her attackers arguing and heard someone begging and “screaming bloody murder” while inside the apartment. Officers discovered a “knife matching the description providedby [the victim],” aburntfork outside the victim’s apartment, and “pieces of

a burnt mop strewed across the kitchen floor.” Medical experts explained that the victim sustained “excruciatingly painful” second-degree burns on her labia, bruises on her arms and knees, and burns on her breasts “in the perfect shape ofa dinner fork,” and that she required multiple corrective surgeries. The victim’s roommate indicated that when she returned to the apartmentafterthe incident, it smelled like “something freshlyburned.” The victim also testified at trial. Though her memory ofthe incident was “not very good,” she told thejury, in no uncertain terms, that one ofher attackers forced a mop in her vagina, that she was burned with a fork on her breasts and vagina, and thatthe entire experience causedher severepain. The jury found Leberry guilty of facilitation of aggravated rape, aggravated assault, extortion, and especially aggravated kidnapping. He was ultimately sentenced to twenty-eight

-3-CaseNo. 12-5980 Leberry v. Howerton years ofimprisonment. State v. Leberry, No. M2003-01228-CCA-R3-CD, 2005 WL 711913, at *1 (Tenn. Crim. App. Mar. 28, 2005). After Leberry’s convictions were affirmed on direct appeal, he sought post-conviction reliefin Montgomery County Court. Onpost-convictionreview, he arguedthattrial counsel was ineffective by failing to request ajury instruction explaining that accomplice testimony must be corroborated. Leberry v. State, No. M2007-01813-CCA-R3-PC, 2009 WL 112579, at *4_5 (Tenn. Crim. App. Jan. 14, 2009). The courtdeniedpost-conviction reliefbecause Leberry could not showthatcounsel’s failureto askforthis instructionprejudicedhim. In 2010, Leberry timely filed apro sehabeas petitionunder28 U.S.C. 

### § 2254, raising two ineffective-assistance-of-counsel claims. He alleged that trial counsel was ineffective in failingto request an accomplicejury instruction and in failing to impeachthe victim’s testimony. A year later, through counsel, Leberry filed an amended petition, which included additional ineffective-assistance arguments.’ The district court determined that all but one of the ineffective-assistance claims raised in the pro se petition were barred by procedural default because Leberry could have raised these arguments in state court but failed to do so. Nevertheless, the district court issued a certificate of appealability (“COA”) on the issue of whether Leberry could establish cause to excuse his procedural default, citing Martinez. This court laterexpanded the COAto include Leberry’s claim onthemerits thattrial counsel rendered ineffective assistanceby failing to requestan accomplicejury instruction. Leberrytimely appealed.

The new ineffective-assistance claims raised in Leberry’s amended petition are barred by the Antiterrorism and Effective Death Penalty Act’s (AEDPA) one-year statute oflimitations. See 28 U.S.C. 

### § 2244(d)(1)(A). The district court correctly concluded that the new ineffectiveassistance arguments raised in the amended petition did not relate back to the initial petition and were time-barred. Therefore, it was proper for the court to dismiss the new ineffective-assistance claims inthe amendedpetition as untimely filed. -4-CaseNo. 12-5980 Leberryv. Howerton II. ANALYSIS A. Procedural Default We review de novo a district court’s conclusion that a petitioner’s habeas claim is procedurally defaulted. Hodges v. Colson, 727 F.3d 517, 529 (6th Cir. 2013). Procedural default may occur ifa petitioner failed to present the claim to the state court and an “independent and adequate state ground” prevents him from doing so. Coleman v. Thompson, 501 U.S. 722, 731 (1991). Ifa state conviction is based on the failure to raise a claim in accordance with state law,

a federal court may not entertain a petitioner’s constitutional argument. Trevino v. Thaler, 133 S. Ct. 1911, 1917 (2013). It is improper for a federal court to “interefere[] with a State’s application of its own firmly established, consistently followed, constitutionally proper procedural rules.” Id. However, a court may excuse the procedural default if a petitioner demonstrates cause and prejudice from a violation offederal law. Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). Leberry argues that the Supreme Court’s decisions in Martinez v. Ryan and Trevino v. Thaler provide cause to excuse the procedural default ofhis ineffective-assistance-of-counsel claims. In Martinez, the Court concluded that ifa state lawprohibits defendants from raising ineffective assistance claims on direct appeal, “aprocedural defaultwill not bar a federal habeas court from hearing” that claim 

### “if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” Id. at 1320. In Trevino, the Court expandedMartinez’s reach by indicatingthat “cause” to excuse a default may also occurwhere a state’s “procedural framework, by reason ofits design and operation, makes it highly unlikely in

atypical case that a defendantwill have a meaningful opportunity to raise a claim ofineffective assistance oftrial counsel on directappeal

. . . .“ Trevino, 133 5. Ct. at 1921 (emphasis added). -5-CaseNo. 12-5980 Leberryv. Howerton Though Martinez and Trevino discussed Arizona’s and Texas’s state procedures, these cases apply with equal force to defendants convicted in Tennessee. See Sutton v. Carpenter, 745 F.3d 787, 795—96 (6th Cir. 2014). In this case, the warden conceded at oral argument that Sutton resolves the question ofwhether Martinez and Trevino apply to Tennessee’s procedures; therefore, Leberry has cause to excuse his defaulted ineffectiveness claims. The secondpart of the procedural default analysis requires the court to determine whether Leberry was prejudiced. Because the district court did not determine whetherprejudice exists, we remand this issue for the court to address whether there is “actual prejudice as a result ofthe alleged violation of federal law.” Coleman, 501 U.S. at750. B. Ineffective-Assistance-of-Counsel We now turn to the merits of the one substantive claim before our court—whether Leberry’s counsel rendered ineffective assistance by failing to request an accomplice jury instruction. Under AEDPA, ifa state courthas adjudicated a federal constitutional claim on the merits, habeas reliefmay not be granted unless the state court’s decision was “contrary to” or “involved an unreasonable application of” clearly established federal law. 28 U.S.C. 

## § 2254(d)(1). State court decisions “must be upheld unless, after the closest examination ofthe state-courtjudgment, a federal court is firmly convinced that a federal constitutional right has been violated.” Williams v. Taylor, 529 U.S. 362, 389 (2000). A state court’s factual determinations are presumed to be correct, and the petitioner bears the burden ofshowing, with clear and convincing evidence, that a state court’s factual conclusions were unreasonable. 28 U.S.C. 

## § 2254(e)(1). Leberry was convicted in state court after 1996; therefore, AEDPA’s stringent standard ofreview applies to the federal claims the state court decided on the merits. In post-conviction

-6-CaseNo. 12-5980 Leberryv. Howerton proceedings, the state court analyzed Leberry’s ineffective-assistance claim on the merits under Stricklandv. Washington, 466 U.S. 668 (1984). To establish ineffective assistance ofcounsel, a petitioner must show that his attorney’s performance was deficientandthathe was prejudiced as aresult. Strickland, 466 U.S. at 687. A petitioner is prejudiced ifhe shows a “substantial,” not simply a “conceivable,” chance of a differentresult. Harrington v. Richter, 131 5. Ct. 770, 792 (2011). The key inquiry is whether counsel’s representation compromised the fairness of the adversarial process. Strickland, 466 U.S. at 686. The post-conviction court recognized that trial counsel performed deficiently by not requesting an accomplicejury instruction. Leberry, 2009 WL 112579 at *5 Still, it held that Leberry could notprevail because he could not establish that counsel’s errorprejudiced him. In Leberry’s view, the state court used the wrong standard—a harmless-error analysis—in concluding that he was not prejudiced. We find Leberry’s challenge must fail because the state courtreasonably applied Strickland. See Burtv. Titlow, 134 S. Ct. 10, 17 (2013). On appeal, the warden does not address whetherdefense counsel’s conduct fell below an objective standard of reasonableness. Assuming arguendo that counsel’s performance was deficient, Leberry cannot showthathe was prejudiced. As evidence ofprejudice, Leberry claims that at leastone memberofthejury wouldhave found in his favor, on at least one ofthe counts ofconviction, had thejury been instructed that accomplice testimony must be corroborated. The problem with Leberry’s argument is that his reading ofTennessee’s corroboration rule is too demanding. The rule is satisfied even ifthe corroborative evidence is “slight,” “entirely circumstantial,” or insufficient “in and ofitself, to support a conviction.” State v. Gaylor, 862 S.W.2d 546, 552 (Tenn. Crim. App. 1992). The

-7-CaseNo. 12-5980 Leberryv. Howerton corroboration must “lead[] to the inference” that a crime has occurred and that “the defendant is implicated in it.” Id. Though each count charged against the defendant must be corroborated, State v. Pitts, 1996 WL 529663, at *5 (Tenn. Crim. App. Sept. 19, 1996), complying with this rule is easily accomplished: “[ajn accomplice’s testimony is deemed sufficiently corroboratedby evidence placing a defendant atthe scene ofthe crime as described by the accomplice.” State v. Barnard, 899 S.W.2d 617, 626 (Tenn. Crim. App. 1994). Leberry’s convictions rested on more than uncorroborated accomplice testimony. Consider his conviction for facilitation of aggravated rape. Leberry claims that Grant’s testimony—thathe alone inserted the mop handle into the victim’s vagina—was uncorroborated. Yet, the victim explained that either Grant or Leberry wielded the mop. Although the victim could not recall who engaged in that conduct and whether there were two separate penetrations with the mop handle, this does not invalidate the corroborative evidence presented. A gynecology expert testified that the victim’s injuries were consistent with “[s]omething hard [enteringthe vagina]

. . . with some force” andthatthis was inconsistentwith normal intercourse. Leberry, 2005 WL 711913, at *4 The victim’s neighbor observed Leberry enter the victim’s apartment and heard someone “screaming bloody murder.” Id. at *9• At trial, Grant recounted thatLeberry insertedthe mop handle inthe victimtwice andthat, onthe secondtime, “he shoved ithard and itmade her scream.” Id. at *7 Without question, the victim, herneighbor, and Grantplaced Leberry at the scene ofthe crime. Given the eyewitness accounts and medical testimony, there is corroborating evidence to support Leberry’s convictions offacilitation ofaggravated rape. Accordingly, the state court’s determination regarding prejudice was not “contrary to” or an “unreasonable application of’

-8-CaseNo. 12-5980 Leberry v. Howerton clearly established federal law, as articulated in Stricklandv. Washington. See Burt, 134 S. Ct. at 15. As to Leberry’s convictions for aggravated assault and aggravated kidnapping, Leberry claims that the corroborative evidence provided by the victim was unreliable and insufficient. By attacking the reliability ofthe corroboration, Leberry appears to concede that corroboration exists. Admittedly, defense counsel did impeach the victim with a prior statement that Grant alone burned herwith the fork, butthe victim’s testimony satisfies the corroboration rule because her testimony “tends to connect the defendant with the commission ofthe offense.” Gaylor, 862 S.W.2d at 552. Despite the impeachment, the victim linked Leberry to the aggravated assault andkidnapping crimes, and it cannotbe saidthatthe omittedjury instruction “so infected the entire trial that the resulting conviction violates due process.” Estelle v. McGuire, 502 U.S. 62, 72 (1991); Cupp v. Naughten, 414 U.S. 141, 147 (1973). Here, thejury was fully equipped to evaluate Grant’s testimony because the trial court brought to the jury’s attention issues concerningtestimony in general: You must decide which witnesses you believe and how important you think their testimony is. You do not have to accept or reject everything a witness said.

. . . Does the witness have any bias, prejudice, or personal interest in how the case is decided? Have there been any promises, threats, suggestions, or other influences that affectedhowthe witness testified? The “failure to give a specific accomplice instruction did not violate [Leberry’s] constitutional rights” or constitute an unreasonable application offederal law. Goffv. Bagley, 601 F.3d 445, 470 (6th Cir. 2010). Because thejury knew that Grant received areduced sentence for testifying againstLeberry, thejury was in the bestposition to weigh Grant’s testimonythatLeberry forced the victimto undress, burnedherwith afork, andraped herwiththe end ofamop handle.

-9-CaseNo. 12-5980 Leberry v. Howerton In essence, Leberry was not an innocent bystander; ample corroboration supports his convictions. Though counsel performed deficiently by not seeking an accomplice jury instruction, its absence neither “undermine[s] confidence in the outcome” ofLeberry’s case nor casts doubt on the fairness ofhis trial. Strickland, 466 U.S. at 694. Leberry cannot show a substantial chance that even ifthe proper instruction had been given, the outcome ofthe trial would have differed. Accordingly, the state court’s decision was not “contrary to” or an “unreasonable application of’ clearly establishedfederal law. See Burt, 134 S. Ct. at 15. III. 

### CONCLUSION For the foregoing reasons, we affirm the district court’s order denying habeas reliefon the accomplicejury instruction claim. On remand, the district court should consider whetherthe impeachment claimdefaultedby Leberry is sufficiently substantial to overcomethe default.

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