NOT RECOMMENDED FOR PUBLICATION File Name: 17a0035n.06 No. 16-5317 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

ELGENE KENTAE PORTER, Petitioner-Appellant,

v. KEVIN GENOVESE, Respondent-Appellee. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

BEFORE: McKEAGUE, GRIFFIN, and KETHLEDGE, Circuit Judges. GRIFFIN, Circuit Judge. In 2006, several masked men entered a professional gambler’s home in metropolitan Nashville in an attempt to rec over outstanding gambling debts. They looted the house and held a mother and her young daughter hostage for several hours. One robber raped the mother. A jury found petitioner Elgene Porter to be both a robber and the rapist, and convicted him of a myriad of crimes. These convicti ons resulted in a forty-tw o year prison sentence. Porter seeks a writ of habeas corpus pur suant to 28 U.S.C. § 2254, contending, among other things, that his trial and appellate c ounsel provided ineffec tive assistance in two instances—failing to raise due pr ocess arguments under Tennessee la w regarding the propriety of his aggravated kidnapping conviction in light of his convictions for attempted aggravated robbery and aggravated rape, and failing to seek re lief after the rape vic tim allegedly made anNo. 16-5317, Porter v. Genovese

-2- exculpatory statement during peti tioner’s sentencing hearing. The district court denied these claims as procedurally defaulted. We a ffirm the judgment of the district court.
I. The Court of Criminal Appeals of Tennessee summarized the underlying facts: On the evening of November 21, 2006, the victim and her two-year-old daughter (the “child victim”) were at their home in Smyrna. Neither the victim’s two stepsons nor her husband, a professional gambler, were at home that evening. Her husband had gone to play poker. After a r outine evening, she a nd the child victim went to sleep in the victim’s bed; between 1:30 and 2:00 a.m., she heard her small terrier barking. Believing it was her hus band returning home, she got up out of bed, turned on the television so the barki ng would not wake the child victim, and then went to the bedroom door to let the dog out. When she opened the door, she saw three men standing at the door pointing guns at her. According to the victim, two of three men were approximately the same height, and they were all wearing dark colored clothe s, dark “hoodies,” longsleeved dark shirts, dark (black or navy) ski-masks, and basic wool, work gloves. The men pushed her to the floor in th e doorway of her bedroom, and one man bound her feet, wrists, and mouth with duc t-tape. The dog kept barking loudly, and another man began to beat the dog. Almost immediately, the men began demanding money. Although the men were mostly covered by their clothing, the victim was able to see that two of the assailants were dark-s kinned and that the other assailant was lighter-skinned. After beating the dog until he went “limp,” one of the men carried the dog out of the room by the “nape of his neck[.]” One of the men placed pillows around the child victim on the bed in order to crea te “an enclosure” for her. The men continued to demand money, and two of the men began ransacking the house looking for money, while the other (a dark -skinned man) stayed and guarded the victim at gunpoint. While guarding the vic tim, the man fondled her, inserted his gloved finger into her vagina, ordered her to perform oral sex, and put his penis inside her vagina. He th en placed the victim up on the bed with her daughter, who had begun to cry, and ordered her to us e a vibrator on herself. As the men were leaving, they took a jar of money (containing approximately $50) and the victim’s cell phone. They to ld the victim, “We’re goi ng another route. We’re going to find your husband.” The victim esti mated that the ordeal lasted from one and one-half to two hours.
* * * After initially denying any involvement in th e crime, the Defendant stated that he was recruited to commit the robbery by a Laotian man named “Salon Von.”No. 16-5317, Porter v. Genovese

-3- During the interview, the Defendant admitted that he went inside the victim’s house and that he fondled the victim’s br easts and inserted his finger into her vagina. The Defendant also made a written statement detailing his participation in the home invasion. Both the videotap ed and written statements were entered into evidence.
State v. Porter , 2011 WL 915673, at *3–4 (Tenn. Crim. App. Mar. 14, 2011) (footnote omitted). A jury convicted defendant of conspiracy to commit aggravated burglar y, aggravated burglary, attempted aggravated robbery, aggravated rape, and two counts of aggravated kidnapping (one for each victim). Id. at *4. The trial court se ntenced him to a total e ffective sentence of fortytwo years. Id. The Tennessee Court of Criminal A ppeals affirmed, and the Tennessee Supreme Court denied his application for permission to appeal. Id. at *5–15. Porter filed a seventeen-ground pro se petiti on for post-conviction relief in the Criminal Court of Rutherford County, Tenne ssee. Appointed counsel raised eighteen different grounds in an amended petition, without in corporating Porter’s pro se pe tition. The post-conviction court denied the amended petition, and the Tennessee Criminal Court of Appeals affirmed. See Porter
v. State , 2013 WL 1197730 (Tenn. Crim. App. Mar. 26, 2013). The Tennessee Criminal Court of Appeals denied rehearing, and the Tennessee Supreme Cour t denied his application for permission to appeal. He then filed a timely § 2254 petition. Having in itially dismissed nearly all of his claims on grounds not pertinent here, the di strict court appointed counsel for further development of two claims: (1) that counsel was constitutionally ine ffective for failing to argue that petitioner’s kidnapping convictions violated the Tennessee Cons titution’s due process guarantee as originally identified in State v. Anthony , 817 S.W.2d 299 (Tenn. 1991); and (2) that counsel was constitutionally ineffective for failing to investig ate and pursue relief on the basis of an alleged exculpatory statement made by the rape victim at Porter’s sentencing hear ing. Petitioner did notNo. 16-5317, Porter v. Genovese

-4- present these claims to the Tenness ee courts during collateral review. 1 Finding these claims either insubstantial or constitu ting claims of ineffective assi stance of appellate counsel, the district court held Port er could not overcome hi s procedural default under Martinez v. Ryan , 132 S. Ct. 1309 (2012), Coleman v. Thompson , 501 U.S. 722 (1991), and Hodges v. Colson , 727 F.3d 517 (6th Cir. 2013), and dismissed th e claims (but granted a certif icate of appealability as to each).
II. Federal habeas corpus proceedings protect individuals held in state custody when that custody violates federal law. See Trevino v. Thaler , 133 S. Ct. 1911, 1916–17 (2013). Our federalism and comity principles equally protect the states’ “firmly esta blished, consistently followed, constitutionally proper procedural rules.” Id. at 1917; see also Coleman , 501 U.S. at 730–31. These rules constitute an “independent and adequate state ground” sufficient to bar review in federal court. Coleman , 501 U.S. at 729–30. That is, in cases where, as here, a prisoner fails to present a federal claim to a st ate court, and the requested remedy is no longer available, the federal claim is procedurally de faulted and a federal court may not pass on that claim. Atkins v. Holloway , 792 F.3d 654, 657 (6th Cir. 2015). Porter seeks relief from this general rule by way of an exception: by “demonstrat[ing] cause for the default and actual prejudice as a resu lt of the alleged violat ion of federal law.” Coleman , 501 U.S. at 750. He claims there is cau se because his post-conviction counsel was ineffective when he failed to raise these claims during collateral review. This is an uphill battle.

1 Porter initially raised these claims pr o se, but his amended petition filed by postconviction counsel neither raised these claims, nor incorporated his pro se petition. He makes no argument that he exhausted these claims by raising them in his pro se petition.No. 16-5317, Porter v. Genovese

-5- “Historically, the federal courts have held that . . . ineffective assistance of postconviction counsel . . . cannot establish cause for procedural default.” Hodges , 727 F.3d at 530; see also Coleman , 501 U.S. at 753 (“Attorney ignorance or inadvertence is not ‘cause.’”). This changed with the Supreme Court’s decision in Martinez v. Ryan , which “recogniz[ed] a narrow exception: Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” 132 S. Ct. at 1315. There are four elements to this exception: (1) the claim of “ineffective assistance of trial counsel” [must be] a “substantial” claim; (2) the “cause” [must] consist [] of there being “no counsel” or only “ineffective” counsel during the state coll ateral review proceeding; (3) the state collateral review proceeding [must have been] the “initi al” review proceeding in respect to the “ineffective-assistance-of- trial-counsel claim”; and (4) state law [must] require [] that an “ineffective assistance of trial counsel claim be raised in an initial-review coll ateral proceeding.”
Trevino , 133 S. Ct. at 1918 (quoting Martinez , 132 S. Ct. at 1318–19) (alterations omitted). At issue here are the first two elements. 2 First, Porter must establish that his underl ying ineffective assist ance of trial counsel claims are “substantial,” “whi ch is to say that . . . [they have] some merit.” Martinez, 132 S. Ct. at 1318–19 (citing Miller–El v. Cockrell, 537 U.S. 322 (2003)). Or, in certificate of appealability parlance, it is “debatable among jurists of reason.” Abdur’Rahman v. Carpenter , 805 F.3d 710, 713 (6th Cir. 2015); see also Atkins , 792 F.3d at 660 (“The Court in Martinez cited Miller-El v. Cockrell . . . for purposes of defini ng a ‘substantial claim,’ and Co ckrell describes the standard for issuing a COA.”). In the converse, a claim is insubstantial when “it does not have any merit,”

2 In Trevino , the Supreme Court held that wher e a state’s “procedural framework, by reason of its design and ope ration, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal, . . . Martinez applies.” 133 S. Ct. at 1921. Tenn essee’s procedural framework falls within Trevino ’s paradigm. See Sutton v. Carpenter , 745 F.3d 787, 792–96 (6th Cir. 2014).No. 16-5317, Porter v. Genovese

-6- “is wholly without factual suppor t,” or when “the attorney in the initial-review collateral proceeding did not perform belo w constitutional standards.” Martinez , 132 S. Ct. at 1319. The mere grant of a COA does not, in and of itself, satisfy a claim’s substantiality. Atkins , 792 F.3d
at 660–61. Second, Porter must also establish he received ineffective assistance of counsel during his initial-review collateral proceeding under the familiar Strickland standards. Martinez , 132 S. Ct. at 1318. Under Strickland v. Washington ’s two-prong test, a person challenging his counsel’s representation must show (1 ) deficient performance, i.e. , that “counsel’s representation fell below an objective standard of reasonableness” and (2) prejudice. 466 U.S. 668, 687–88, 691– 92 (1984). Courts must “apply a ‘strong presumpti on’ that counsel’s repr esentation was within the ‘wide range’ of reasonabl e professional assistance.” Harrington v. Richter , 562 U.S. 86, 104 (2011) (quoting Strickland , 466 U.S. at 689). To establish prejudice, a challenger must demonstrate “a reasonable probability that, but fo r counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland , 466 U.S. at 694. “A ‘reasonable probability’ is a probability ‘sufficient to underm ine confidence in the outcome,’ but something less than a showing that the outcome more lik ely than not would have been different.” Bigelow v. Williams , 367 F.3d 562, 570 (6th Cir. 2004) (quoting Strickland , 466 U.S. at 693, 694). This “difference” is “slight and matters ‘only in the rarest case.’” Harrington , 562 U.S. at 112 (quoting Strickland , 466 U.S. at 697). We review de novo the district court’s legal conclusions an d mixed questions of law and fact. Hodges , 727 F.3d at 525. “Whether a petitioner’s federal habeas claim is barred by procedural default is a questi on that we review de novo.” Id. at 529 (citation and footnote omitted).No. 16-5317, Porter v. Genovese

-7- III.
A. Porter claims he was improperly convicted of two counts of aggravated kidnapping because the imprisonment effectuated to accomp lish the two underlying convictions (attempted aggravated robbery and aggravat ed rape) did not further the ki dnapping. “False imprisonment” is an element of aggravated kidnapping, which o ccurs when one “knowingly removes or confines another unlawfully so as to in terfere substantially with the ot her’s liberty.” Tenn. Code Ann. §§ 39-13-302, 39-13-304(a). Tennessee law recognizes that this false imprisonment element sometimes overlaps with elements of other crimes that also require restrictions on a victim’s liberty. That recognition, set forth in State v. Dixon , 957 S.W.2d 532 (Tenn. 1997), is at the crux of Porter’s appeal: “separat e kidnapping convictions may viol ate due process when kidnapping is essentially incidental to other offenses for which a defe ndant has been convicted.” Id. at 533. To understand Dixon , we begin with its predecessor— State v. Anthony . In that case, the Tennessee Supreme Court first expressed its co ncern that Tennessee’s kidnapping statute “could literally overrun several other crimes, notably robbery and ra pe, . . . since detention and sometimes confinement, against the will of the victim, frequently accompany these crimes.” 817 S.W.2d at 303 (citation omitted). It then set fo rth the following rule for courts to evaluate “the propriety of a kidnapping c onviction where detention of the victim is merely incidental to the commission of another felony, such as robbery or rape” in order to not violate Tennessee’s constitutional due process guarantee: We conclude that the better rule is . . . whether the confinement, movement, or detention is essentially incidental to the accompanying felony and is not, therefore, sufficient to s upport a separate conviction fo r kidnapping, or whether it is significant enough, in and of itself, to warrant independent prosecution and is, therefore, sufficient to su pport such a conviction.No. 16-5317, Porter v. Genovese

-8- Id. at 300, 306. “[W]hether a detention or movement is incidental to another offense is highly dependent on the facts in each case.” Id. at 306. In Anthony (and its consolidated case, State v.
Martin ), the defendants entered businesses, robbed the businesses (and ordered their employees around) at gunpoint, and then instructed the employ ees to remain in bathrooms while they left. Id. at 301–02. The Tennessee Supreme Court found thes e actions to be merely incidental to the robberies and reversed the defendants’ ki dnapping convictions on due process grounds. Id. at 307.
In Dixon , the Tennessee Supreme Court tempered this “essentially incidental” test, commenting that “ Anthony and its progeny . . . are not meant to provide the rapist a free kidnapping merely because he also committed ra pe.” 957 S.W.2d at 534. Rather, held the Tennessee Supreme Court, “the Anthony decision should only preven t the injustice which would occur if a defendant could be c onvicted of kidnapping where the only restraint utilized was that necessary to complete th e act of rape or robbery. Accordingl y, any restraint in addition to that which is necessary to consummate rape or robbery may support a separate conviction for kidnapping.” Id. at 534–35. It then crafted a tw o-part test that replaced Anthony ’s “essentially incidental” standard: 3 First, was “the movement or confinement . . . beyond that necessary to consummate the [other felony]. . . . If so, the ne xt inquiry is whether th e additional movement or

3 In State v. Richardson , the Tennessee Supreme Court clarif ied that this two-prong test “fully replace[d] the Anthony ‘essentially incidental’ analysis,” and that “[t]he Dixon test should be used exclusively in all future inquiries. ” 251 S.W.3d 438, 443 (Tenn. 2008). This was shortlived. The Tennessee Supreme Court subsequently held that this test was no longer a function for the judiciary. State v. White , 362 S.W.3d 559, 577–78 (Tenn. 2012) (reversing Anthony and its progeny). Rather, “whether the evidence , beyond a reasonable doubt, establishes each and every element of kidnapping, as defined by statute, is a question for the jury properly instructed under the law.” Id. at 577. The Tennessee Supreme Court issued White on March 9, 2012— nearly a year after it denied direct review of Porter’s conviction and sentence—and did so by expressly noting that White did “not articulate a new rule of constitutional law or require retroactive application.” Id. at 578. As such, White is of no import to Porter’s petition.No. 16-5317, Porter v. Genovese

-9- confinement: (1) prevented the victim from su mmoning help; (2) lessened the defendant’s risk of detection; or (3) created a significant danger or increased th e victim’s risk of harm.” Id. at 535. In application, the Dixon court had little trouble finding no due process problem with the defendant’s kidnapping conviction—he jumped the victim from behind, dragged her from a sidewalk to a concealed lo cation, and then beat and at tempted to rape her. Id. at 533. This additional confinement was not incidental to the sexual assault because it was not necessary to move the victim in order to consu mmate the attempted sexual assault. Id. at 535. Porter contends both his trial and appellate counsel were ineffective by failing to argue his kidnapping convictions did notmeet this standard, writing in his petition as follows: Defense counsel failed to argue at the se ntencing and on first tier direct appeal that, under the facts and circumstances of the case, and under the due process protection afforded citizens under Article I, Section 8 and Article XI, Section 16 of the Tennessee Constitution and of the Fi fth and Fourteenth Amendments to the Constitution of the United States and following the analysis of Anthony and its progeny, that the multiple convictions in Mr. Porter’s case should merge into one conviction. [4] As his post-conviction counsel did not raise this as a claim for relief, Porter argues we should excuse his procedural default under Martinez

. B. Preliminarily, Hodges forecloses Porter’s position that his collateral counsel’s failure to raise an ineffective assistance of appellate co unsel claim permits this court to excuse his procedural default. 727 F.3d at 531 (“[I]neffective assistan ce of post-conviction counsel cannot supply cause for procedural default of a claim of inef fective assistance of appellate counsel.”

4 A “first tier” appeal is an a ppeal taken from a trial court to a court of appeals, and a “second tier” appeal is a discretionary appeal from the court of appeal s to the court of last resort. See Weston v. State , 60 S.W.3d 57, 59 (Tenn. 2001); Pinkston v. State , 668 S.W.2d 676, 676 (Tenn. Crim. App. 1984); see generally Hardaway v. Robinson , 655 F.3d 445, 450 (6th Cir. 2011).No. 16-5317, Porter v. Genovese

-10- (emphasis added)). Yes, the Nint h Circuit sees this differently. See Ha Van Nguyen v. Curry , 736 F.3d 1287, 1289 (9th Cir. 2013). But this does not, as Porter argues, mean that there is “cause” to excuse his default b ecause “it is ‘debatable’ under Miller-El whether claims of ineffective-assistance-of-appellate- counsel fall within the ambit of Martinez .” This creative argument conflates the elements required to fit within Martinez/Trevino ’s exception with that exception’s scope. To excuse his procedural default under the limited exception, Porter must show both that his claim of “ineffective assistance of trial counsel ” was “substantial” and that he has “cause” to excuse his defa ult by way of collateral counse l’s ineffective assistance. Trevino , 133 S. Ct. at 1918 (emphasis added). He cannot a void the emphasis here—the law of this circuit is that Martinez/Trevino ’s limited exception does not extend to claims of ineffective assistance of appellate counsel. Hodges , 727 F.3d at 531. Absent en banc review or an intervening and binding change in the state of the law (which Port er does not argue), this panel may not revisit Hodges

. See Bennett v. MIS Corp. , 607 F.3d 1076, 1095 (6th Cir. 2010). Accordingly, the district court correctly di smissed Porter’s claim as it pertains to ineffective assistance of appellate counsel.
C. That leaves us with his tria l counsel claims, one for the child and one for the mother. We examine each in turn.
1. The district court correctly concluded Porter’s kidnapping conviction for the child did not present any due process concerns under Tennessee law, as the child was not the victim of petitioner’s underlying offenses. See State v. Teats , 468 S.W.3d 495, 503–04 (Tenn. 2015). Despite conceding the correctness of this conclusion, Porter asks that we read his AnthonyNo. 16-5317, Porter v. Genovese

-11- merger claim as one that is really a challenge to the sufficiency of the evidence given the supposed dearth of evidence showing th e child’s liberty wa s restrained. We decline to do so. For one , his petition does not raise a Jackson v. Virginia , 443 U.S. 307 (1979), type sufficiency of the evidence argument as to this claim. Rather, and liberally construing his pro se petition (and, not to me ntion, his counsel’s accompanying briefing, which focuses solely on the Anthony/Dixon line of cases), his petition makes clear that this claim raises a due process challenge as to merger, which is different from a due pr ocess challenge as to sufficiency of the evidence. See, e.g. , Thorne v. Lester , 641 F. App’x 541, 543 (6th Cir. 2016) (rejecting similar argument). Hi s newfound sufficiency of the evidence claim thus falls outside the scope of the certificate of appeal ability, and we will not consider it. See Hall v. Warden, Lebanon Correctional Inst. , 662 F.3d 745, 752–53 (6th Cir. 2011).
2. There is no debating that the robbers extensivel y restricted the mother’s liberty during the hour-plus long ordeal. They pushe d her to the floor in the door way to her bedroom, and duct taped her mouth around her head, her hands, and her feet. The extensive binding led to her losing feeling in her legs and hands, her feet tu rned purple, and she co uld not support her own weight when attempting to walk. A single robber also stood as an armed guard over her (and her child) in the bedroom, while the others search ed the house for money. While in the bedroom, she was moved from laying on the floor, to sitting up against the bed, to being placed in her bed with her child. The guard sexually assaulted he r on four different occasions—rapes the other robbers periodically interrupted by inquiring as to where she thought the money might be. On this basis, the district court concluded Porter could not satisfy Strickland ’s “reasonable probability” standa rd to show prejudice:No. 16-5317, Porter v. Genovese

-12- The fact that the adult victim’s hands , feet, and mouth were duct-taped, even though the victim was also subdued at gunpoint , fairly dictates a conclusion that the degree of restraint went beyond that necessary for the consummation of the attempted robbery or the rape, for purposes of the first prong of the Dixon analysis. As for the seco nd prong, the duct-taping had th e effect of preventing the victim from screaming, using the phone, or running for help. The fact that she was able to free herself from the bindings after the perpetrators left her house does not compel a different conclusion. (Internal citations omitted.) Porter ar gues the district court erred in applying Dixon ’s first prong—“the movement or confinement was be yond that necessary to consummate” the aggravated robbery and rape. In his view, the mother’s bi nding and confinement was just necessary to facilitate the robber y, and no more. He does not contes t the district court’s finding as to the second prong. In support, Porter contends State v. Coleman , 865 S.W.2d 455 (Tenn. 1993), controls. We disagree. There, the defendant and an accomplice robbed a shoe store by gunpoint. Id. at 456–57. After the victim handed over the money, the defendant ordered her to move to the back of the store and then to a side room, threatened to kill her, and raped her at gunpoint. Id. at 457. The Tennessee Supreme Court found that under Anthony ( Coleman was pre- Dixon ), an aggravated kidnapping conviction could not lie in addition to rape and robbery convictions: There is ample evidence in this record to establish that appellant’s intent in entering the store was to commit armed robbe ry. This was the primary offense. The abduction was for the purpose of fac ilitating his escape and was essentially incident to the robbery. It was after he determined that her empl oyer was not present in the backroom that he told her “he could blow her _____ _____ head off for lying to him.” Under threat of death he made her get up from the floor and enter the side room where she was raped. The facts of this case fu lly support convictions of two separate offenses: the aggravated robbery and th e aggravated rape. They do not support the kidnapping conviction under the Anthony rule. Id. at 457. As the state properly no tes, this case is distinguisha ble on account of not involving physical restraint in addition to being held at gunpoint.No. 16-5317, Porter v. Genovese

-13- However, the state’s main case, State v. Fuller , 172 S.W.3d 533 (Tenn. 2005), is also not dispositive. There, the perpetrators broke into the victims’ house, demanding money at gunpoint. Upon realizing they broke into a differe nt house than intended, they stole some money from the victims, and then bound and questioned both for about forty minutes. They left the female in a bedroom and forced the male outsi de to show them the correct house. Upon returning to the house with the ma le, the perpetrators placed the male in the bedroom, stuck a gun in each of their mouths, or dered the couple to turn around, and threatened them to not interfere before leaving. Id. at 534–35. This co nfinement satisfied Dixon : the perpetrators had already completed the robbery (t aking money) before binding th e victims and questioning them to determine the location of the correct home— the binding was not “for the sole purpose of facilitating the robbery or their escape.” Id. at 537. Given this temporal emphasis between the completion of the robbery and confinement, Fuller is not decisive here. Rather, application of Dixon ’s first prong to the facts presen ted here is best illustrated by the Tennessee Supreme Court’s decision in Richardson , a decision that is on all fours with the facts presented here. Richardson involved a brutal attempted ar med robbery of a restaurant where the defendant worked. He forced one manager into a stock room by gunpoint and then struck her head with the gun, causi ng her to fall to the floor. He then demanded another manager open a safe in an office (again, by gunpoint), bu t when the manager had trouble opening it, he severely beat her. During this beating, defendant’s accomplice bound the first manager’s hands with duct tape. The defendant then dragged the second manager into another room, beat her some more, and left, threatening to kill her if she move d. The two tried again to open the safe to no avail, and left the restau rant. 251 S.W.3d at 439–40.No. 16-5317, Porter v. Genovese

-14- In reversing the Tennessee C ourt of Criminal Appeals’ hol ding that the kidnappings were essentially incidental to th e attempted aggravated robber y, the Tennessee Supreme Court emphasized that application of the Dixon test (1) does not depend upon an attempt conviction, and (2) remains a fact-sensitive one: Our analysis does not differ when the kidnapping conviction is accompanied by a conviction for criminal attempt. A de fendant may be convicted of criminal attempt based on conduct consti tuting a substantial step toward the commission of the offense. Conduct does not constitute a substantial step, however, “unless the person’s entire course of action is co rroborative of the intent to commit the offense.” For due process purposes, we likewise must take into account that a defendant intends to commit an offense, not an attempt

. We must consider a defendant’s entire course of action . We therefore reject the view that after an initial substantial step toward the comm ission of the offense, any movement or confinement of the victim always will be beyond that necessary to consummate the attempt. At the other end of the spectru m, we also reject the view that because an attempt continues until a defendant’s efforts are abandoned, any movement or confinement of the victim never will be beyond that necessary to consummate the attempt. In short, no bright line exists for making the threshold determination in the first prong of the Dixon test. The inquiry is fact-driven

. Id. at 443 (internal citation omitted; emphasis added); see also Fuller , 172 S.W.3d at 538 (“[T]he determination of whether a detention or movement is incidental to another offense is highly dependent on the facts in each case.” (quoting Anthony, 817 S.W.2d at 306)). Accordingly, held Richardson , “[d]istance of the victim’s movement and duration or place of the victim’s confinement are factors to be considered in de termining if the movement or confinement was beyond that necessary to consummate the accompanying felony.” 251 S.W.3d at 443. The court then concluded that the detention of both managers satisfied Dixon ’s first prong. As to the first manager: Howell informed Richardson as they walked to the stock room that Lucas was in the office. Rather than leading Howell to the office where the safe was located, Richardson moved her to an empty stock room . Howell provided Richardson’s accomplice with the combination to th e safe while she was confined. Richardson’s accomplice then bound Howell’s hands behind her back. Howell continued to be bound and confined for over twenty minutes . While Howell’sNo. 16-5317, Porter v. Genovese

-15- movement to and confinement in the stockroom may have been helpful to Richardson, we conclude that this m ovement and confinement were beyond that necessary to consummate the attempte d especially aggrav ated robbery. Id. at 444 (emphasis added). And as to the manage r the defendant severely beat while trying to open the safe: The confinement of Lucas to the office a nd her movement and confinement to the fan room also were beyond that necessary to consummate the attempted especially aggravated robbery. After Lu cas unsuccessfully a ttempted to open the safe and provided Richardson with th e combination to unlock the safe, Richardson continued to confine Lucas to the office while beating her for approximately twenty minutes . Although the use of force is not a direct element of Dixon’s first prong, the length of time that Richardson beat Lucas in the office is relevant to show that the restraint was excessive and beyond that necessary to consummate the attempted especially aggravated robbery . Moreover, we reject the suggestion that a twenty-minute beating of Lucas as she lay curled on the floor was designed to assist in procuring Lucas’ cooperation in opening the safe. Instead, we conclude that the use of force for an excessively long period shows that Lucas was no longer confined to assist in opening the safe

. Even if Lucas’ confinement in the office had not been sufficient to meet the first prong of the Dixon test, the subsequent movement and confinement of Lucas to the fan room clearly went beyond that necessary to consummate the attempted especially aggr avated robbery . Lucas gave Richardson the combination to the safe after attempting unsuccessfully to open it. At that point , Richardson either could have continued his attempt to open the safe with Lucas in the office or abandoned his efforts and left the restau rant without moving Lucas. Richardson, however, moved Lucas to the fan room . . . “to shut her up.” Id. at 445 (emphasis added). The same is true here. The robbers bound the mother’s hands, feet, and mouth. They also held her at gunpoint. On t op of that, they confined her move ment to a single room for at least an hour and a ha lf while they ransacked the house looking for money (instead of, for example, taking her around the house to help the robbers look for th e money). In th is regard, the district court correctly concluded “the degree of restraint went beyond that necessary for the consummation of the attempted robbery or the rape.”No. 16-5317, Porter v. Genovese

-16- Porter resists this conclusion, citing State v. Griffin , 2002 WL 1482689 (Tenn. Crim. App. Mar. 15, 2002); State v. Sanders , 842 S.W.2d 257 (Tenn. Crim. App. 1992); and State v. Mosely , 1992 WL 85799 (Tenn. Crim. App. April 29, 1992), for the proposition that “Tennessee courts have repeatedly found the binding of a vic tim with duct tape to be incidental to the accompanying rape or robbery,” even when the perp etrators also held victims at gunpoint. Our review of Tennessee case law does not support this conclusion. See, e.g. , State v. Ward , 2010 WL 1949155, at *2–3, *9 (Tenn. Crim. App. Oc t. 13, 2010) (no due process violation involving physical restrain t, movement, and gunpoint); State v. Majors , 2010 WL 2483512, at *6 (Tenn. Crim. App. June 21, 2010) (no due pro cess violation involving attempted physical restraint, movement, and gunpoint); State v. Jones , 2005 WL 1848476, at *2–3 (Tenn. Crim. App. Aug. 4, 2005) (no due proce ss violation involving physi cal restraint and gunpoint); State v. McAnally , 2004 WL 1872899, at *5 (Tenn. Crim. App. Aug. 20, 2004) (similar, and noting that the tying of arms or feet would have been sufficient, but the tying of both together was excessive). Griffin , it is true, is a firearm-plus-restrai nt armed robbery case where the Tennessee Criminal Court of Appeals found a due process violation, but it is distinguishable. In that case (which is pre- Fuller and pre- Richardson ), the robbers just bound the victim’s hands and forced him to lay on the floor while they robbed hi s house. 2002 WL 1482689, at *3, *9. “[The] risk [of harm to the victim] was not substantially gr eater than that necessarily inherent in the robbery” concluded the Tennessee Cr iminal Court of Appeals. Id. at *9. The restraint applied here far exceeds Griffin —they bound the mother’s hands, feet, and mouth, and held her at gunpoint, and confined her to her bedroom for at leas t an hour and a half. As the Tennessee Supreme Court recognized in Fuller when it also distinguished the cases relied upon by Griffin ,No. 16-5317, Porter v. Genovese

-17- “the binding of the victims [in t hose cases] did not increase the risk of harm over and above that necessarily present in th e crime of robbery itself.” 172 S.W.3d at 538. That is not the case here. 5 Accordingly, we conclude Porter has not esta blished that it is re asonably probable that the trial court would have concluded the restra int effectuated upon the mother did not go beyond that necessary to consummate the robbery under prong one of Dixon

. 6 Porter has not shown that his claim of ineffective assistance of trial co unsel as to the kidnapping of the mother is substantial and, thus, cannot overc ome his procedural default.
IV. Petitioner’s second claim relate s to his aggravated rape convi ction. He testified at his sentencing hearing, at which time Porter’s family members allegedly over heard the rape victim say that Porter was not the person who raped her after listening to “his voice or speech pattern”—Porter apparently has a pronounced speech impediment. Porter’s mother notified his trial counsel about this by way of a letter four days before a hear ing on a motion for a new trial. His trial counsel raised the letter with the court, and requested that the court “bifurcate and allow an amendment of the motion for new trial” so that he could gather sufficient proof as to the claim before presenting it to th e court. The trial court denied the mo tion. Porter did not raise this issue during his direct appeal or duri ng post-conviction proceedings.

5 Sanders and Mosely are distinguishable as they are Anthony cases that do not apply Dixon ’s subsequent two-prong refinement. Sanders , 842 S.W.2d at 260; Mosely , 1992 WL 85799, at *3.

6 Porter does not contest the di strict court’s conclusion that this additional confinement satisfied Dixon ’s second prong. Nor could he. It prevented the mo ther from summoning help, thereby lessening the robbers’ risk of detection. And it also in creased her risk of harm—the binding made her lose feeling in her extremities , turning them purple and preventing her from walking, and restricted her ability to fight off Porter’s various sexual assaults. See Dixon , 957 S.W.2d at 535; see also Richardson , 251 S.W.3d at 444–45.No. 16-5317, Porter v. Genovese

-18- In his pro se § 2254 petition, Porter framed th e failure to pursue this issue any further as constituting ineffective assistance of appellate counsel: “Defense counsel was ineffective . . . on first tier direct appeal in failing to file a motion to stay the pro ceeding” to pursue a writ of “error coram nobis” regarding this allegedly exculpator y evidence. Under Tenne ssee’s criminal code, a coram nobis writ provides relief to convicted defendants in the form of a new trial as follows: The relief obtainable by this proceeding shall be confined to errors dehors the record and to matters that were not or could not have been litigated on the trial of the case, on a motion for a new trial, on appeal in the nature of a writ of error, on writ of error, or in a habeas corpus proceeding. Upon a showing by the defendant that the defendant was without fault in fa iling to present certain evidence at the proper time, a writ of error coram nobis will lie for subsequently or newly discovered evidence relating to matters whic h were litigated at the trial if the judge determines that such evidence ma y have resulted in a different judgment, had it been presented at the trial. Tenn. Code Ann. § 40-26-105(b). “The plain and ordinary meaning of the term ‘litigated on or at the trial’ in the context of criminal prosecu tions refers to a contested proceeding involving the submission of evidence to a fact-f inder who then must assess and weigh the proof in light of the applicable law and arrive at a verdict of guilt or acquittal.” Frazier v. State , 495 S.W.3d 246, 250 (Tenn. 2016) (brackets omitted). It is “an ex traordinary procedural remedy which rarely produces results favorable to a criminal defendant.” State v. Hall , 461 S.W.3d 469, 495 (Tenn. 2015). The district court construed petitioner’s claim as one of ineffective assistance of appellate counsel and held Hodges precluded a finding of cause under Martinez/Trevino . We agree. It is, of course, well-settled that “[t]he allegations of a pro se habeas petition . . . are entitled to a liberal construction,” including construing the petition “to encompass any allegation stating federal relief.” Franklin v. Rose , 765 F.2d 82, 85 (6th Cir. 1985) (per curiam) (citation omitted). But this leniency lens “is not boundless.” Martin v. Overton , 391 F.3d 710, 714 (6th Cir. 2004).No. 16-5317, Porter v. Genovese

-19- Pro se status neither “abrogate[s ] basic pleading essentials” nor “r equire[s a] court to conjure up unplead[ed] allegations.” Wells v. Brown , 891 F.2d 591, 594 (6th Cir. 1989) (citations omitted). Here, Porter’s petition as a whole sets forth clai ms against his trial counsel, appellate counsel, and both. And as it relates to this issue, he expressly framed the claim as one involving counsel’s “ineffective[ness] on first tier direct appeal,” ad ding that “[t]he failure [of] defense counsel to appeal this . . . issue amounted to ineffective assistance of counsel.” As the district court correctly observed: [T]he claim is unambiguously articulated as one of ineffec tive assistance of appellate counsel. More over, the petitioner was undoubtedly aware that his attorney raised the issue of the purported new evidence in the hearing on the motion for a new trial and apparently c ontends that his ap pellate counsel was deficient for not further pursuing the issu e on appeal or by staying the appeal and filing a coram nobis petition. Although we must liberally construe his pe tition, Porter is still its master. See The Fair v. Kohler Die & Specialty Co. , 228 U.S. 22, 25 (1913) (“[T]he party who brings a suit is master to decide what law he will rely upon.”). Thus, we will not rewrite his petition by reading the express modifying language regarding “first tier direct appeal” to also include a claim against his trial counsel. The district court correctly conc luded this claim was limite d to a claim against his appellate counsel and did not fit within Martinez/Trevino ’s limited exception.
V. For these reasons, we affirm the judgment of the district court.