NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 11a0416n.06 No. 09-5473 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

RONNI E FI

NCH, Petitioner-Appellant,

v. TONY PARKER, WARDEN, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED ST ATES DI STRI CT COURT FOR T H E M ID D LE D IS T R IC T O F TENNESSEE

Be fore : ROGERS and KETHL EDGE, Circuit Judges, RUSSEL L , Chief District J udg e. *
KETHL EDGE, Circuit J udg e. The St at e of Tenne ssee prosec uted Ronnie Finch and two other men for their involvement in a shooting that left one man wounded and another man dead. The three defe ndants wer e jointly tried. At the conclusion of the State’s case -in-chie f, Finch’ s counsel moved for a

judgme nt of ac quittal. The court took the motion under advisement, whic h was e rror under Tenne ssee L aw. The jury convicted Finch of fac ilitation of first-degree murder and two counts of fac ilit at ion of attempted first-degree murder. The trial court sentenc ed Finch to 49 y ear s’ imprisonment. Finch unsucce ssfully challeng ed his convictions on direc t appea l and in sta te postconviction proc eeding s.

The Honora

ble Thomas B. Russell, United States Chief District J udg e for th e W est ern * District of Ke ntucky , sitti ng by desig nation.No. 09-5473

Finch v. Park

er Finch the rea fter f

iled a habe as petition in feder al cour t, pursuant to 28 U.S.C. § 2254. His petition raised numerous g rounds for relief , including that his counsel was ineffe ctive by failing to object when t h e trial court took Finch’ s motion for acquittal under advisement, there by waiving Finch’ s rig ht to appea l the sufficie ncy of the State’s evidenc e ag ainst him. The district court denied the petition but gr anted a

cer tificate of appea lability

on that claim. We revie w de novo the district court’s denial of the writ. Ruimve ld v. Birkett , 404 F.3d 1006, 1010 (6th Cir. 2005). We may not g rant the writ unless Finch shows that the state court’s denial of relief was “contr ary to, or involved an unrea sonable application of, clea rly established fede ral law,

as deter m i n ed b y the Supreme Court of the United States[.] ” 28 U.S.C. § 2254(d)( 1). Finch

conce des that the Tenne ssee Supreme Court’s decision on this claim is not contra ry to Supreme Court pr ece dent, but he ar g ues that the c ourt unrea sonably applied cle arly

established fe dera l la

w. Specifica lly , Finch say s the Tenne ssee Supreme Cour t unrea sonably applied Strickland v. W ash i n g t o n , 466 U.S. 688 (1984). Under Strickland , Finch must establish that his counsel’s
p er fo rm an ce was objectively defic ient, and that the defic iency was prejudicia l. See Haliym v. Mi t chell , 492 F.3d 680, 694 (6th Cir. 2007). The S tate concede s that Finch’ s counsel er re d

. T h e

o n ly question befor e us, then, is whether the state court unrea sonably found that there was no “re asonable probab i l i ty that, but for [Finch’s] counsel’s unprofe ssional err ors, the result of the
proce edingwould have be en diffe rent.” Strickland , 466 U.S. at 694. Although Finch was indicted for preme ditated and attempted preme ditated murder, the jury convicted him only of fac ilitating those crimes. Finch v. State , 226 S.W .3d 307, 312 (Tenn. 2007).
I n Tenne ssee, “ [a] person is cr iminally responsible for the fac ilitation of a felony , if, knowing that -2-No. 09-5473

Finch v. Park

er another intends to commit a s p ec ific felony , but without the intent require d for criminal responsibility

. . . , the per son knowing ly furnishes substantial a ssistance in the commission of the felony .” Tenn. Code Ann. § 39-11-403( a). The Tenne ssee Supreme Court found that Finch was not prejudice d beca

use, at the close of the State’s case -in-chie f, the jury had sufficie n t evidenc e to convict Finch. Specifica lly , the court explained, the jury could have rea sonably inferr ed that Finch fired one of at least three wea pons involved in the shooting. Even if Finch did not fire direc tly at the victims, his participation in the g unfig ht “provide d substantial assistance ” to his co-de fenda nts. See Finch , 226 S.W .3d at 320. We cannot say that this deter mination is unrea sonable. The district court’s judgme nt i s aff irmed.

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