1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0050p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

G ARY W AYNE S UTTON , Petitioner-Appellant , v

.

W AYNE C ARPENTER , Warden, Respondent-Appellee

. ┐ │ │ │ │ │ │ ┘ No. 12-6310

Appeal from the United St ates District Court for the Eastern District of Tennessee at Knoxville No. 3:07-cv-00030—Thomas A. Varl an, Chief District Judge. Decided and Filed: March 19, 2014 Before: MOORE, WHITE, a nd DONALD, Circuit Judges.

_________________ COUNSEL

ON BRIEF: Susanne Bales, FEDERAL DEFENDER SERVICES, Knoxville, Tennessee, for Appellant. Andrew Hamilton Smith, OFFI CE THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

_________________ OPINION

_________________ HELENE N. WHITE, Circuit Judge . The question is whether Martinez v. Ryan , 132 S. Ct. 1309 (2012), and Trevino v. Thaler , 133 S. Ct. 1911 (2013), permit a habeas petitioner challenging a Tennessee convi ction to assert the ineffective as sistance of post-conviction counsel as “cause” to excuse the petitioner’s procedural default of a claim that his trial counsel was constitutionally ineffective. We answer in the affirmative, and therefore REMAND. 

### >12-6310 Sutton v. Carpenter Page 2

I. In 1993, a Tennessee jury convicted petitione r Gary W. Sutton of premeditated first degree murder and felonious burning of personal property. Sutton received a life sentence for the murder and a consecutive two-year term fo r the felonious burning. Sutton’s trial counsel represented him throughout his direct appeal, and filed hi s first petition for pos t-conviction relief. In 2000, Sutton dismissed his trial counsel a nd was appointed new counsel. Sutton’s new counsel amended his petition for post-conviction re lief, raising ineffectiv e-assistance-of-trialcounsel claims for the first time, although not the cl aims at issue here. The state trial court held an evidentiary hearing on the petition and denied relief.
Sutton was appointed new counsel for his federal habeas petition, and on January 31, 2007, he filed this petition seeki ng a writ of habeas corpus under 28 U.S.C. § 2254. Sutton’s petition included a claim for ineffective assistance of trial counsel. In support, Sutton argued for the first time that his trial couns el were ineffective for (1) failing to object to the jury-selection procedures used at his trial and (2 ) failing to object to the trial co urt’s use of a “moral certainty” standard in its jury instructions rega rding finding guilt beyond a reasonable doubt.
The district court denied the petition on September 29, 2011. With respect to the ineffective assistance of Sutton’s trial counsel, the court found Sutton’s newly raised ineffectiveassistance claims procedurally defaulted. See Lovins v. Park er, 712 F.3d 283, 295 (6th Cir. 2013) (“[A] claim is procedurally defaulted wher e the petitioner failed to exhaust state court remedies, and the remedies are no longer available at the time the federal petition is filed because of a state procedural rule.”); see also Tenn. Code Ann. § 40-30-102(c) (precluding successive petitions for post-conviction reli ef); Tenn. Code Ann. § 40-30-117 (s etting forth limited bases for reopening petitions). A federal court will review a state prisoner’s procedurally defaulted federal claim if the prisoner shows “cause” for the defa ult and “prejudice” from the error, or if a manifest miscarriage of just ice would otherwise result. See Coleman v. Thompson , 501 U.S. 722, 749–50 (1991). Finding that Sutton did not make th at showing, the district court declined to review his defaulted claims.12-6310 Sutton v. Carpenter Page 3

Within days of the district court’s order denying Sutton’s habeas petition, the Supreme Court heard oral argument in Martinez v. Ryan , 132 S. Ct. 1309 (2012), a nd the district court agreed to hold Sutton’s case in abeyance pending the decision. Martinez held that the ineffective assistance of post-conviction counsel can establish “cause” to excuse the procedural default of a defendant’s substantial claim of ineffective a ssistance at trial where state procedural law prohibits defendants from raising such claims on direct appeal and instead requires defendants to raise the claims for the first time in post-conviction proceedings. See id. at 1318–19. The district court found Martinez inapplicable to Sutton’s Tenne ssee conviction because Tennessee’s procedural law does not prohibit litigation of ineffective-assist ance claims on direct appeal. Concluding that reasonable jurist s could find its ruling debatable, however, it granted Sutton a certificate of appealability on the question. Sutton filed a timely notice of appeal.
Just two weeks later, the Supreme Court granted certiorari in Trevino v. Thaler , 133 S. Ct. 1911 (2013). At Sutton’s request, we held briefing in abeyance pendi ng resolution of that
case. In Trevino , the Court broadened the reach of Martinez , holding that its ru le also applies where, although state procedural law may permit defendants to raise ineffective-assistance claims on direct appeal, a stat e’s “procedural framework, by r eason of its design and operation, makes it highly unlikely in a typi cal case that a defendant will ha ve a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal.” Id. at 1921.

After the Trevino decision issued, Sutton filed a motion to remand to the district court for consideration in the first instance whether, in light of Trevino , Sutton could raise his postconviction counsel’s ineffectiveness as cause fo r the procedural default of his ineffectiveassistance-of-trial-counsel claims. This court has granted motions to remand in several cases in a similar posture. In Sutton’s cas e, rather than remand, we dire cted the parties to address
Trevino ’s application in their merits briefs. Thus, the issu e fully briefed and squarely presented for decision is whether, under Trevino , the rule in Martinez applies to Tennessee convictions. Reviewing the question de novo, Lovins , 712 F.3d at 293, we find that it does.12-6310 Sutton v. Carpenter Page 4

II. A federal court may grant habeas relief to a state prisoner who de monstrates that his conviction rests on a violation of the Federal Constitution. See Trevino , 133 S. Ct. at 1917. Our review for constitutional infirmity, however, is circumscribed by deference to “a State’s application of its own firmly established, consistently followed, constitutionally proper procedural rules.” Id. Accordingly, we will normally not consider a petitioner’s constitutional claim when his conviction rests on a state court’s independent de termination that the defendant failed to raise an argument at the time or place required by the state’s procedural law. Id. A petitioner can obtain federal review of such “procedurally defaulted” claims only if he shows “cause” and “prejudice,” or a “manif est miscarriage of justice.” See Coleman , 501 U.S. at 749– 50.
The right to the effective assi stance of counsel at trial is a “critically important” right, guaranteed by the Sixth Amendment, and a state prisoner whose conviction rests on a denial of that right may be entitl ed to habeas relief. Trevino , 133 S. Ct. at 1921. Just as with any other habeas claim, however, a state prisoner’s procedural default of an ineffective-assistance-of-trialcounsel claim precludes this court’ s review absent a s howing of cause and pr ejudice, or manifest miscarriage of justice. In Coleman , the Supreme Court held that “[b]ecause Coleman had no right to counsel to pursue his app eal in state habeas, any attorney error that led to the default of Coleman’s claims in state court cannot constitute cause to excuse the default in federal habeas.” Coleman , 501 U.S. at 757.

Martinez announced a narrow exception to Coleman ’s general rule. It allows postconviction counsel’s ineffectivene ss to establish “cause” to excuse the procedural default of an ineffective-assistance-of-trial-c ounsel claim in states where pos t-conviction proceedings present the defendant’s first opportunity to raise such a claim. See Martinez , 132 S. Ct. at 1320. When state law does not permit a defendant’s ineffective-assistance claim to be brought until postconviction proceedings, the Court reasoned, the pos t-conviction proceeding “is in many ways the equivalent of a prisoner’s dire ct appeal” on that claim. Id. at 1317. Without Martinez ’s exception, a defendant’s claim that he was denied constitutionally adequate assistance at trial could get caught in an eddy at th e confluence of federal deferen ce, state proced ural law, and12-6310 Sutton v. Carpenter Page 5

inadequate post-conviction counsel, a nd thereby escape review entirely. Id. at 1316 (“[I]f counsel’s errors in an initial-review collateral proceeding do not establish cause to excuse the procedural default in a federal habeas proceedin g, no court will review the prisoner’s claims.”).
In Trevino , the Court, considering Texas law, held that the same concerns are present (and therefore the Martinez exception applies) when a state’s pr ocedural framework makes it “highly unlikely” that a defendant in a typical case will have a “meaningful opportunity” to raise ineffective-assistance claims on direct appeal. Trevino , 133 S. Ct. at 1921. We turn, therefore, to the question whether Tennessee’s procedural rules are sufficiently similar to Texas’s to come within Trevino

.
A.

In Trevino , “two characteristics” of Texas’s pr ocedural framework led the Court to conclude that a Texas de fendant in the typical case is unlik ely to have a meaningful opportunity to raise ineffective-assistance claims on direct appeal. Id. at 1918. First, although Texas permits defendants to raise the claims on direct appeal , Texas’s procedural rules make it “virtually impossible” to adequately present the claims on direct appeal. Id. (quoting Robinson v. State , 16 S.W.3d 808, 810–11 (Tex. Crim. App. 2000 )). In so finding, the Cour t noted that Texas courts recognize that most ineffective- assistance claims require the development of extra-record evidence. Id. (citing Ex parte Torres , 943 S.W.2d 469, 475 (Tex. Crim. App. 1997) (en banc)). And, although a defendant may raise trial counsel’s ineffectiveness in a motion for new trial and may even be granted additional time to develop the record, Texas courts recognize that the “motion-for-new-trial ‘vehicle is often inadequa te [to raise trial counsel’s ineffectiveness] because of time constraints and b ecause the trial record has generally not been transcribed at this point.’” Id. (quoting Torres , 943 S.W.2d at 475). Specifically, Texas procedural rules require defendants to file motions for new trial within 30 days of sentencing, Tex. R. App. P. 21.4, and trial courts to dispose of the motions within 75 da ys of sentencing, Tex. R. App. P. 21.8 (a), (c), but allow up to 120 days post-sentencing for prep aration of the transc ript, Tex. R. App. P. 35.2(b), 35.3(c). In combination, Texas courts recognize, the ru les preclude the fact-gathering necessary to adequately present the claim. Trevino , 133 S. Ct. at 1918–19 (collecting cases).12-6310 Sutton v. Carpenter Page 6

Second, the Court found that Texas defendants lack a meaningful opportunity to develop claims on direct appeal because “Texas courts in effect have directed defendants to raise claims of ineffective assistance of tr ial counsel on collateral, rather than on direct, review.” Id. at 1919. Specifically, the Court noted, Texas courts have (1 ) explained why direct review proceedings are likely inadequate; (2) held that failure to ra ise the claim on direct review does not bar the defendant from bringing it in post-conviction proceedings; and (3) suggested that appellate counsel’s failure to raise the claim on direct review is not ineffective assistance. Id. at 1919–20. Further, Texas’s highest criminal court ha s explicitly stated that defendants “should not ” bring the claims on direct appeal. Id. at 1920 (quoting Mata v. State , 226 S.W.3d 425, 430, n.14 (Tex. Crim. App. 2007) (emphasis in origin al)). Noting that “[t]he criminal bar, not surprisingly, has taken this strong judicial advice se riously,” the Court concluded that it would be unf air to decline to extend Martinez under these circumstances. Id.

B.

Consideration of the same characteristics of Tennessee’s procedur al law compels our conclusion that Tennessee defendant s, too, are highly unlikely to have a meaningful opportunity to raise a claim of ineffective assistan ce of trial counsel on direct appeal.

First, like Texas, Tennessee’s procedural rules make it almo st impossible for a defendant in a typical case to adequately present an in effective-assistance claim on direct appeal. Tennessee courts recognize that “t he practice of raising ineffectiv e assistance of counsel claims on direct appeal is ‘fraught with peril’ since it ‘is virtually impossible to demonstrate prejudice as required’ without an evidentiary hearing.” State v. Blackmon , 78 S.W.3d 322, 328 (Tenn. Crim. App. 2001) (citations omitted). Courts advise defendants not to raise the claims on direct appeal for that reason. See id. (“‘[I]neffective assistance of c ounsel claims should normally be raised by petition for post-conviction relief.’ ”) (citation omitted); Kendricks v. State , 13 S.W.3d 401, 405 (Tenn. Crim. App. 1999) (“[W]e have previ ously warned defendants and their counsel of the dangers of raising the issue of ineffectiv e assistance of trial co unsel on direct appeal because of the significant of [sic] amount of development and factfinding such an issue entails.”). And although an evidentiary heari ng may be available to a defendant who files a motion for new trial, Tennessee’s procedural rules create some of the same timing obstacles with12-6310 Sutton v. Carpenter Page 7

respect to motions for new trial as do Texas’s rules. A defendant must file the motion within 30 days of sentencing, Tenn. R. Crim . P. 33(b), and trial transcripts may not be available until much later. See Tenn. R. App. P. 24(b) (requiring the transcri pt to be filed 60 days after filing the notice of appeal); Tenn. R. App. P. 4(a), (c) (p roviding that the deadline for filing a notice of appeal is tolled by a motion for new trial). Thes e time limits are critical because if a defendant fails to raise an issue in the time allotted, he forfeits his opportunity to litigate th e issue on direct appeal. Tenn. R. App. P. 3(e); s ee also Fahey v. Eldridge , 46 S.W. 3d 138, 141 (Tenn. 2001) (“It has long been the rule in this state that in order to preserve errors for appeal, the appellant must first bring the alleged errors to the attention of the trial court in a motion for a new trial.”). Where trial counsel files the moti on for new trial, the waiver rule alone effectively forecloses litigation of most ineffective-as sistance claims on direct appeal because “trial counsel . . . can hardly be expected to challenge . . . his own ine ffectiveness.” Frazier v. State , 303 S.W.3d 674, 682–83 (Tenn. 2010) (quoting Velarde v. United States , 972 F.2d 826, 827 (7th Cir. 1992)). In a typical Tennessee case, it is likely that trial counsel will file the motion for new trial because Tennessee requires appointed 1 trial counsel to continue repr esentation throughout a defendant’s direct appeal, and permits withdr awal only on a showing of good cause. See Tenn. Sup. Ct. Rules 13(e)(5); Tenn. Code Ann. § 40-14-205(a); see also Sasser v. Hobbs , 735 F.3d 833, 851 (8th Cir. 2013) (finding a similar requirement in Arkansas law dispositive to its determination that Arkansas does not provide “defendants a meaningful opportun ity to challenge their trial counsel’s effectiveness on direct appeal” under Trevino ). Thus, the rules combine to make it highly improbable that Tennessee defe ndants will be in a position to raise ineffective assistance in a motion for new trial, much less to pursue an evidentiary hearing on the claim. Under those circumstances, as Tennessee courts recognize, it is “virtually impossible” for the defendant to adequately present the claim on direct appeal. Blackmon , 78 S.W.3d at 328.
With respect to the second characteristic, Te nnessee courts, like Texa s courts, “in effect have directed defendants to raise claims of ineff ective assistance of trial counsel on collateral,

1 Appointed counsel represent crim inal defendants in the overwh elming majority of cases. See Robert L. Spangenberg & Marea L. Beeman, Indigent Defense Systems in the United States , 58 Law & Contemp. Probs. 31, 31 (1995) (“It is not uncommon for indigent defense programs to represent up to 90 percent of all criminal defendants in a given felony jurisdiction.”).12-6310 Sutton v. Carpenter Page 8

rather than on direct, review.” Trevino , 133 S. Ct. at 1919. Specifically, Tennessee courts have explained that direct review proceedings are inad equate to present ineffective-assistance claims “because of the significant . . . amount of devel opment and factfinding such an issue entails.” Kendricks , 13 S.W.3d at 405 (collecting cases holding th e same). They hold, as do Texas courts, that failure to raise an ineff ective-assistance claim on direct a ppeal is not grounds for finding the claim waived in post-conviction proceedings. See id. (“[T]he post-convicti on court erred in holding that the petitione r’s ineffective assistance of counsel claims were barred for failure to raise them on direct appeal.”); see also Pylant v. State , 263 S.W.3d 854, 868 (Tenn. 2008) (“A claim of ineffective assistan ce of counsel is a claim cognizable under Tennessee’s PostConviction Procedure Act.”) (citing Tenn. Code Ann. §§ 40-30-101–313) . And, Tennessee’s highest criminal court regularly advises defendants that raising in effective assistance on direct appeal is a practice “fraught with peril” and that “t he better practice is to not raise the issue on direct appeal.” State v. Wagner , E2012-01144-CCA-R3-CD, 2014 WL 60971, at *11 (Tenn. Crim. App. Jan. 8, 2014) (empha sis in original) (quoting State v. Sluder , No. 1236, 1990 WL 26552, at *7 (Tenn. Crim. App. Mar. 14, 1990); see also, e.g. , Sterling v. State , W1999-00608- CCA-R3-CD, 2001 WL 1117518, at *7 (Tenn. Cr im. App. Sept. 24, 2001) (same); State v. Frantz , 03C01-9509-CC-00269, 1998 WL 46432, at *9 (Ten n. Crim. App. Feb. 6, 1998) (same); State v. Anderson , 835 S.W.2d 600, 607 (Tenn. Crim. App. 1992) (same). As the Court observed in Trevino , it “would create significan t unfairness” to deny defendants the benefit of Martinez “because of the existence of a theoretically ava ilable procedural alternative, namely direct appellate review,” that Tennessee cour ts advise defendants not to use. Trevino , 133 S. Ct. at 1919–20.

C.
Respondent argues that Tennessee and Texas di ffer in crucial ways. First, Respondent notes that Tennessee is unlike Texas in that Te nnessee procedural rules do not impose a deadline for resolution of new trial motions, and Tennessee rules provide that trial courts shall “liberally grant motions to amend the motion for new trial until the day of the hearing on the motion.” Tenn. R. Crim. P. 33(b). These differences, Resp ondent argues, make it feasible for a Tennessee defendant to develop the record in a motion for new trial and, therefore, provide Tennessee12-6310 Sutton v. Carpenter Page 9

defendants a “meaningful opportunity” to raise ineff ective-assistance claims on direct appeal. In support, Respondent cites a series of fourt een decisions involving Tennessee defendants who litigated ineffective-assistance-of- trial-counsel claims in an evid entiary hearing held pursuant to a motion for new trial. See Resp. Br. 27–28. In at least three of those cases, Respondent notes, the trial court did not hold a hearing on the motion for new tr ial for several months, thus allowing time to develop the factual record. See State v. Urbano-Uriostegui , M2012-00235- CCA-R3-CD, 2013 WL 1896931, at *1 (Te nn. Crim. App. May 6, 2013), appeal denied (Oct. 16, 2013) (hearing held ten months after motion filed); State v. Monroe , E02011-00315-CCAR3-CD, 2012 WL 2367401, at *1–2 (Tenn. Crim. App. June 22, 2012) (hearing held 11 months after motion filed); State v. Honeycutt , M199800245CCA R3CD, 1999 WL 1063546, at *1 (Tenn. Crim. App. Nov. 24, 1999), rev’d , 54 S.W.3d 762 (Tenn. 2001) (hearing held 7 months after motion filed).
The differences identified by Respondent are not immaterial for defendants in a position to take advantage of them. Under Texas’s proc edural rules, a defendant may amend his motion for new trial “without leave of court,” but only within the 30-day period for filing such motions, Tex. R. App. P. 21.4(b), and a defendant’s motion fo r new trial is denied by operation of law if a trial court does not decide the motion within the 75-day time period, Tex. R. App. P. 21.8(a), (c). In Tennessee, however, a defendant can seek le ave to amend or supplement a motion for new trial any time before the hearing, as to which th e trial court has no deadline. The absence of Texas’s 30- and 75-day deadlines in Tennessee’ s procedural rules means that a Tennessee defendant could potentially be afforded more tim e to identify and substantiate ineffectiveness claims than could a Texas defendant.
But many Tennessee defendants are in no positi on to take advantage of the opportunity because of the interplay of other Tennessee pro cedural rules. As noted, Tennessee’s procedural law creates a presumption that indigent defendants will be represented by trial counsel on appeal, and trial counsel are unlikely to raise thei r own errors in a motion for new trial. See Sasser , 735 F.3d at 852 (“‘[I]t is unrealistic to expect tria l counsel, who is also a ppellate counsel, to call into question his own competence.’”) (citation omitted); Robinson , 16 S.W.3d at 810 (“[M]ounting an ineffective assistance attack in a motion for new trial is inherently unlikely if12-6310 Sutton v. Carpenter Page 10

the trial counsel remains counsel during the ti me required to file such a motion.” (quoting
Torres , 943 S.W.2d at 475)); Halbert v. Michigan , 545 U.S. 605, 620 n.5 (2005) (“A lawyer may not, however, perceive his own errors . . . .”); see also Trevino , 133 S. Ct. at 1921 (recognizing “the need for a new lawyer” as a consideration that “argue[s] strongly” for consideration of ineffective-assistance claims on co llateral review, rather than dire ct appeal). For a defendant represented by trial counsel on appeal, absent the insight and wherewithal to seek his attorney’s withdrawal, Tennessee’s expanded window for amending new-trial motions has little effect on the ability to identify and develop ineffective-assi stance claims in time to raise them in a newtrial motion. The lack of access to a trial tr anscript during that time period augments the difficulty. A defendant who misses the opportunity to raise claims in a new-trial motion waives the claims on direct appeal. If a defendant disreg ards the waiver rule and raises them anyway, he runs the risk that the court of appeals will deny the claims as procedurally defaulted or will decide them without an evidentiary hearing. See Wilson v. State , No. 909, 1991 WL 87245, at *6 (Tenn. Crim. App. May 29, 1991) (“[S]uch a path by c ounsel is doomed to procedural failure.”). Thus, in combination, Tennessee pr ocedural rules create significant obstacles to a defendant’s adequate presentation of an ineffective assist ance claim on direct appeal. The absence of Tennessee analogues to Texas’s time limits for am ending and resolving new-trial motions does not change our conclusion on this point.
Respondent also contends that, rather th an discouraging defendants from raising ineffective-assistance claims on direct appeal, Tennessee cour ts have “merely admonished defendants for advancing trial- effectiveness claims after failing to avail themselves of the meaningful procedural opportunity Tennessee provide s.” Resp. Br. 31 (emphasis in original). Respondent contends that Tennessee courts have “only declined to consider trial-ineffectiveness claims on direct appeal where: (1) the defendant has conceded th e issue; (2) the record does not contain a transcript of the motion for new tr ial hearing, or; (3) the defendant waived the issue . . . by failing to include the issue in his or her motion for new trial, or by presenting the issue for the first time on appeal.” Id. at 32 (footnotes omitted). But a state’s courts of appeals need not decline to hear ineffective-assistance cl aims on direct appeal in order to be understood

as directing defendants to raise the claims in collateral proceedings in the manner Trevino found significant. A state whose appell ate courts consistently declined to hear the claims would likely12-6310 Sutton v. Carpenter Page 11

fall within the rule as stated in Martinez

. More to the point, alt hough sometimes Tennessee courts observe that raising ineff ectiveness claims on direct appeal is “fraught with peril” in the context of admonishing defendants for advancing trial-effectiveness claims after failing to first present the claims in a motion for new trial, see, e.g. , Sterling , 2001 WL 1117518, at *7, Tennessee courts make the same observation wh en reviewing ineffectiveness claims that were presented in a motion for new trial with an evidentiary hearing. See Anderson , 835 S.W.2d at 607. Accordingly, the message overwhelmingly co mmunicated is that the claims are best resolved, with least risk to the defe ndant, in post-conviction proceedings.

III. For the foregoing reasons, we find that ineff ective assistance of post-conviction counsel can establish cause to excuse a Tennessee defenda nt’s procedural default of a substantial claim of ineffective assistance at trial. Martinez , 132 S. Ct. at 1320. We REMAND to the district court for proceedings consistent with this opinion.