NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a1095n.06
No. 12-5012
UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T
PAUL L AURENT, Petitioner-Appellant,

v. STEPHEN DOTSON, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE MI DDL E DI STRI CT OF TENNESSEE

Be fore : MERRI TT, MARTI N, and GI L MAN, Circuit J udg es.

P E R CURI AM. Paul L aure nt, who is repr esente d by counsel, appea ls a distr i ct co u rt judgme nt deny ing his pe tition for a writ of ha beas c orpus filed unde r 28 U.S.C. § 2254. Following a bench trial in 2004, L aure nt was convicted of ag g rava ted kidnapping , attempted
aggra vated sexual battery , ag g rava ted sexual battery , attempted child neg lect, and two counts of sexual battery by an authori t y fi gu re
. The trial court sentenc ed L aure nt to twelve y ear s of imprisonment for ag g rava ted kidnapping , six y ear s of imprisonment f o r a tt e mp ted ag g rava ted sexual battery , twelve y ear s of imprisonment for ag g rava ted sexual battery , two y ear s of imprisonment for attempted child neg lect, and five y ear s of imprisonment for eac h count of sexual battery by an authority fig ure. The court order ed that L aure nt’s sentenc es for ag g rava ted kidnapping , ag g rava ted sexual battery , and attempted ag g rava ted sexual batter y ru n co ncurr ently , that his sentenc es for sexual battery by an authority fig ure and attempted child neg lect also run concur rently , and that the twelve y ear concur

rent sentence run conse cu t i v e t o the five y ear concur rent sentence, resulting in

an eff ective sentenc e of sevente en y ear s of im p r is onment. The Tenne ssee Court of Criminal Appea lsNo. 12-5012 - 2 - af firmed L aure nt’s convictions and the Tenne ssee Supreme Court denied L aure nt permiss i o n t o appea l. L aure nt then filed a petition for post-conviction relief with the state trial court, arg uing that he rec eived i n ef

fe cti ve assistance of counsel at trial. The trial court dismiss ed the petition. The Tenn essee Court of Criminal Appea ls aff irmed that decision, Laurent v. State , No. M2008-01836-CCA-R3-PC, 2009 WL 2502004 (Tenn. Crim. App. Aug

. 17, 2009), and the Tenne ssee Supre me Court ag ain denied L aure nt permission to appeal. On Marc h 11, 2010, L aure nt filed his petition for a writ of h ab eas corpus pursuant to section 2254, ag ain asser

ting that his trial counsel was ineffe ctive. L aure nt arg ued that trial counsel

err ed by not interviewing witnesses prior to trial, resulting in counsel eliciting damag ing testimony during cro s s -ex amination. He also asser ted that trial counsel err oneously advised him befor e sentenc ing to file a statement of allocution and submit to a sexual-offende r evalua tion. The district
court found that the state courts of Tenne ssee rea sonably con cl u ded that counsel’s actions during

cross-e x amination did not prejudice L aure nt. Wit h respe ct to the pre- sentenc ing advice , the district
court found that the state courts rea sonably resolved this claim by deter mining that counsel made a strateg ic dec ision based on the facts. The dist rict cour t denied L aure nt’s petition for habe as re lief and g rante d a ce rtificate of appe alability under 28 U .S.C. § 2253(c). We revie w the district court’s decision de novo. Crist ini v. McKee , 526 F.3d 888, 897 (6th Cir. 2008). To state a claim for ineffe ctive assista n ce o f co unsel, a petitioner must demonstrate that “counse l’s perf

ormanc e was defic ient” and that “the defic ient perf ormanc e prejudice d the defe nse.” Strickland v. W

ashington , 466 U.S. 668, 687 (1984). Def icient perf

ormanc e can be established by “showing that counsel made er ro rs so serious that counsel was not functioning as the ‘counse l’
g uara n teed the defe ndant by the Six th Amendment.” Id. “Judi cial scrutiny of counsel’s perf ormanc e must be h i gh l y d ef

er ential.” Id. at 689. Prejudice can be established by showing that “ther e is aNo. 12-5012 - 3 -

rea sonable probability that, but for counsel’s unprofe ssional er ro rs , t h e result of the proce eding would have been differ ent. A rea sonable probability is a probabi l i t y s u fficient to undermine confide nce in the outc ome.” Id. at 694. L aure nt arg ues that his attorney was defic ient by asking the nurse who examined the victim whether the victim’s scra tches wer e rec ent. To establish that L aure nt committed ag g rava ted sexual battery , the prosec utor had to prove, among other things, that L aure nt cause d bodily injury to the

v i cti m. Tenn. Code Ann. § 39-13-504( a)( 2). Bodily injury is define d as “a cut, abra sion, b ru i s e, burn or disfigur ement, and phy sical pain or temporar y illn es s or impairment of the function of a bodily member, org an, or mental fac ulty .” Tenn. Code Ann. § 39-11-106( a)( 2). L aure nt asser ts that by asking the nurse about the victim’s scra tches, counsel provided the nurse an opportunity to testify that the injuries wer e new, there by introducing the evidenc e of bodily injury on which the trial court based its conviction of a g g rava ted sexual battery

. The Tenne ssee Court of Criminal A p p e a ls , a p p ly in g S tr ic k la n d , c o n c luded that L aure nt failed
to establish that he was prejudice d by counsel’s cross-e x amination of the nurse. The court found that the victim’s testimony that L aure nt held her down and rubbed mace in h er ey es was sufficie nt to establish bodily injury

. Laurent , 2009 WL 2502004, at *8. The victim testified that the mace burned her ey es. The nurse also testified on direc t examination that the victim stated that the mace burned her ey es
. Be cause this evidenc e was sufficie nt to establish bodily injury under Tenne ssee law, counsel’s que stion did deprive L aure nt of a fa ir trial. L aure nt contends that his attorney was ineffe ctive for advising him to submit a statement of allocution and underg o a psy chosexual evalua tion befor e sentenc ing beca use the trial court used the information fr o m t h e allocution and evalua tion to enhanc e his sentenc es and impose consec utive
sentenc es. The Tenne ssee Court of Criminal Appea ls held that counsel’s advice reg arding L aure nt’s allocution was a rea sonable strateg y “to establish his remorse .” Id

. at * 9

. The court found that counsel was not ineffe ctiv e wi th respe ct to the psy chosexual evalua tion beca use Tenne ssee lawNo. 12-5012 - 4 - require s a sex offe nder to submit to such evalua tion prior to sentenc ing. See Tenn. Code Ann. § 39- 13-705. Thus, counse l was not ineff ective r eg arding this iss ue. The district cour

t’s judgme nt is affirmed.