Floyd Rayner, III v. David Mills

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0216p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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Petitioner-Appellant, -
FLOYD EARL RAYNER III,
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No. 10-5242
v.
,
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Respondent-Appellee. -
DAVID MILLS, Warden,
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Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 3:06-cv-1187—William J. Haynes, Jr., District Judge.
Decided and Filed: July 12, 2012
Before: COLE and STRANCH, Circuit Judges; CARR, District Judge.*

_________________

COUNSEL
ON BRIEF: C. Douglas Thoresen, Andrew Brandon, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. Deshea Dulany Faughn,
OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for
Appellee.
_________________

OPINION
_________________

CARR, District Judge. Petitioner Floyd Earl Rayner, III, appeals the district
court’s denial of his petition for habeas corpus. The district court granted a Certificate
of Appealability to review Rayner’s ineffective assistance of counsel claims and, finding
them meritless, we AFFIRM the judgment of the district court.

*
The Honorable James G. Carr, Senior United States District Judge for the Northern District of
Ohio, sitting by designation.

1
No. 10-5242 Rayner v. Mills Page 2

I. BACKGROUND

On January 10, 2001, a Tennessee jury convicted Rayner of five counts of rape
of a child and five counts of aggravated sexual battery. (Memorandum, Dist Ct. Docket
No. 90, at 2.) The trial court sentenced petitioner to an effective term of fifty-one years
in prison: twenty-one years for each rape of a child conviction, and nine years for each
aggravated sexual battery conviction, with two of the rape counts and one of the sexual
battery counts to run consecutively, and the remainder to run concurrently. (Id.)

In December 1999, Rayner’s daughter reported to a family friend that she had
been sexually abused. (Id. at 4.) At trial, the victim testified that Rayner had touched
her “private parts” with his hands and mouth, on more than one occasion. (Id.) She also
said that Rayner penetrated her anus with his penis. (Id.) The victim testified that she
asked Rayner to stop, because the act hurt her. (Id.) The victim also testified that
Rayner made her fondle his penis and perform oral sex. (Id.) The victim stated that
these acts occurred multiple times. (Id. at 4-5.)

At trial, the prosecution presented medical proof that the victim suffered from
trichomoniasis, a sexually transmitted disease. (Id. at 5.) No evidence was presented
that Rayner had trichomoniasis. (Id. at 10.) On cross-examination, defense counsel
pointed out that trichomoniasis could be transmitted in ways not involving sexual
contact. (Id.) Defense counsel’s strategy focused on the theory that the victim was lying
about the abuse. (Id.)

Following his conviction, Rayner appealed to the Tennessee Court of Criminal
Appeals, claiming the trial court breached its duty as a “thirteenth juror,” failed to apply
mitigating factors to Rayner’s sentence, and erred in ordering consecutive service of
some of his sentences. State v. Rayner, No. M2001-00971-CCA-R3-CD, 2002 WL
1336654, *1 (Tenn. Crim. App. June 19, 2002). The appellate court affirmed Rayner’s
convictions, and denied review of the sentencing issues due to Rayner’s failure to
include the pre-sentence report in the record on appeal. Id. at *4. The Tennessee
Supreme Court denied his application for review. (Memorandum, Dist Ct. Docket No.
90, at 2).
No. 10-5242 Rayner v. Mills Page 3

On state collateral review, Rayner brought a claim for the ineffective assistance
of counsel, alleging that his counsel failed to investigate the case properly, call co-
workers and neighbors as witnesses, pursue a potential defense that Rayner did not have
trichomoniasis, hire an investigator, and provide the pre-sentence report for his record
on direct appeal. (Id. at 3.) The trial court denied the petition, and the Tennessee Court
of Criminal Appeals affirmed. Rayner v. State, No. M2005-01672-CCA-R3-PC, 2006
WL 2000701, *2 (Tenn. Crim. App. July 19, 2006). The Tennessee Supreme Court
denied his application for review. (Memorandum, Dist Ct. Docket No. 90, at 3.)

Rayner filed a petition for the writ of habeas corpus in the Eastern District of
Tennessee, later transferred to the Middle District of Tennessee, advancing seven
grounds for relief: prosecutorial misconduct, ineffective assistance of trial counsel,
ineffective assistance of appellate counsel, insufficiency of the evidence, actual
innocence, trial court’s failure to apply mitigating factors to his sentence, and that his
sentence was unlawfully enhanced by facts not found by a jury. (Id. at 1.) After holding
an evidentiary hearing, the district court denied Rayner’s petition, but granted a
Certificate of Appealability (“COA”) on the ineffective assistance of counsel claims.
(See id. at 24-25; Order, Dist. Ct. Docket No. 91.) Rayner timely appealed.1

II. ANALYSIS

A. Standard of Review

In reviewing a decision denying habeas corpus relief, this Court reviews the
district court's legal conclusions de novo, and its factual findings for clear error.
Lucas v. O'Dea, 179 F.3d 412, 416 (6th Cir. 1999). Rayner filed his habeas petition in
November 2006, after the effective date of the Antiterrorism and Effective Death Penalty

1
The State argues that the Certificate of Appealability was improvidently granted, and should be
revoked by this Court. It is not necessary for this Court to consider the State's claim, as it should have
raised this issue on a motion to dismiss. See, e.g., Porterfield v. Bell, 258 F.3d 484, 485 (6th Cir. 2001).
In Porterfield, “considerations of judicial economy” did not discourage review of the COA, particularly
as the district court had not considered the issue and the parties had yet to brief the merits of the case. Id.
Such is not the case here, and as the issues have already been briefed and presented to this Court, we will
not review the grant of the COA.
No. 10-5242 Rayner v. Mills Page 4

Act of 1996 (“AEDPA”), so AEDPA and the case law interpreting it govern this Court’s
review of Rayner’s claims. See 28 U.S.C. § 2254(d).

Before this Court may consider a claim for habeas relief on the merits, a
petitioner must have “exhausted the remedies available in the courts of the State.” Id.
§ 2254(b)(1)(A). Once a court finds that the petitioner has exhausted his claims, it
proceeds to the merits of the claims. Section 2254(d) imposes the following standard of
review in a habeas case:

An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

Id. § 2254(d).

A decision is “contrary to” clearly established federal law “if the state court
arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of
law or if the state court decides a case differently than [the Supreme] Court has on a set
of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000).
A decision involves an “unreasonable application” of clearly established federal law “if
the state court identifies the correct governing legal principle from [the Supreme] Court's
decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id.

Each of Rayner’s claims asserts that he received ineffective assistance of counsel.
Under the familiar test from Strickland v. Washington, 466 U.S. 668 (1984), a petitioner
must satisfy two prongs—deficiency and prejudice—to succeed in an ineffective
assistance claim. In order to demonstrate deficiency, a petitioner must show his
“counsel's representation fell below an objective standard of reasonableness.” Id. at 688.
No. 10-5242 Rayner v. Mills Page 5

To demonstrate prejudice, a petitioner must show “there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. The Supreme Court has defined a “reasonable probability” as one
that is “sufficient to undermine confidence in the outcome.” Id.

The parties dispute whether a habeas court must afford AEDPA deference to a
Strickland prong not reached by the state court when the state court denies a petitioner’s
ineffective assistance claim entirely on the other prong. In Wiggins v. Smith, the
Supreme Court noted that its “review is not circumscribed by a state court conclusion
with respect to prejudice, as neither of the state courts below reached this prong of the
Strickland analysis.” 539 U.S. 510, 534 (2003); see also Rompilla v. Beard, 545 U.S.
374, 390 (2005) (citing Wiggins, 539 U.S. at 534) (reviewing prejudice de novo when
state courts denied claim entirely on deficiency); Porter v. McCollum, 130 S. Ct. 447,
452 (2009) (per curiam) (citing Rompilla, 545 U.S. at 390) (reviewing deficiency de
novo when state court denied claim entirely on prejudice). The Supreme Court’s more
recent decision in Harrington v. Richter, 131 S. Ct. 770 (2011), addressed a different
circumstance, a state court’s summary dismissal of an ineffective assistance of counsel
claim that did not address either Strickland prong. The Supreme Court explained the
appropriate standard of review as follows:

Where a state court's decision is unaccompanied by an explanation, the
habeas petitioner's burden still must be met by showing there was no
reasonable basis for the state court to deny relief. This is so whether or
not the state court reveals which of the elements in a multipart claim it
found insufficient, for § 2254(d) applies when a “claim,” not a
component of one, has been adjudicated.

Id. at 784.

There is little doubt that this language stands for the proposition that, when there
is no explanation as to either Strickland prong, a habeas court must afford both prongs
AEDPA deference after “determin[ing] what arguments or theories . . . could have
supported [] the state court’s decision.” Id. at 786; cf. Wogenstahl v. Mitchell, 668 F.3d
No. 10-5242 Rayner v. Mills Page 6

307, 327 (6th Cir. 2012) (prosecutorial misconduct claim); Sheppard v. Bagley, 657 F.3d
338, 345 (6th Cir. 2011) (due process in sentencing claim).

Harrington does not specifically address the scenario where, as here, a state
court’s decision discusses one prong but not the other. We, and other circuits, have
addressed that scenario in post-Harrington decisions. In at least two published
opinions—one of which was decided en banc—where the state court adjudicated only
one prong, we have continued to rely on Wiggins and have reviewed the remaining prong
de novo.2 Davis v. Lafler, 658 F.3d 525, 537 (6th Cir. 2011) (en banc); Rice v. White,
660 F.3d 242, 251 (6th Cir. 2011); see also Brown v. McKee, 460 F. App’x 567, 580 (6th
Cir. 2012); Davis, 658 F.3d at 541 (Martin, J., concurring in part and dissenting in part).
These decisions did not examine the interplay between Wiggins and Harrington nor
specifically address the argument that tension may exist between the cases. However,
an Eleventh Circuit opinion and a one-judge opinion in the Seventh Circuit have
undertaken this analysis and both concluded that Harrington did not disturb Wiggins.
Ferrell v. Hall, 640 F.3d 1199, 1224-27 (11th Cir. 2011); Sussman v. Jenkins, 642 F.3d
532, 534 (7th Cir. 2011) (Ripple, J.).3 Fifth and Ninth Circuit cases have, like our own,
continued to follow Wiggins or Rompilla without discussion. Salts v. Epps, 676 F.3d
468, 480 n.46 (5th Cir. 2012); Detrich v. Ryan, 677 F.3d 958, 983 (9th Cir. 2012);
Williams v. Cavazos, 646 F.3d 626, 637 n.6 (9th Cir. 2011), cert. granted on other
grounds, 132 S. Ct. 1088 (U.S. Jan. 13, 2012) (No. 11-465).

We see no reason to stray from the standard of review observed by our en banc
Sixth Circuit in Davis v. Lafler and the other four circuits to encounter this issue: When
a state court relied only on one Strickland prong to adjudicate an ineffective assistance
of counsel claim, AEDPA deference does not apply to review of the Strickland prong not

2
District courts within this Circuit have also continued to recognize the Wiggins rule in post-
Harrington decisions. E.g., Jordan v. Sheets, No. 2:10-CV-34, 2012 WL 553091, at *11 n.2 (S.D. Ohio
Feb. 21, 2012); Milstead v. Sherry, 07-15332, 2011 WL 1883187, at *6 (E.D. Mich. May 17, 2011);
Bolden v. Rapelje, No. 1:11-CV-310, 2011 WL 1666982, at *2 (W.D. Mich. May 3, 2011).
3
The en banc Eleventh Circuit debated but did not decide this question. Compare Childers v.
Floyd, 642 F.3d 953, 969 n.18 (11th Cir. 2011) (en banc) (“suggest[ing]” that Harrington “may” have
overruled Rompilla, without deciding the issue), with id. at 985-87 (Wilson, J., concurring) (concluding
that Harrington did not overturn Wiggins and Rompilla).
No. 10-5242 Rayner v. Mills Page 7

relied upon by the state court. The unadjudicated prong is reviewed de novo. A fuller
examination supports this standard.

Let us begin with the Harrington situation, a state court decision without
explanation. A summary holding rejecting an ineffective assistance claim necessarily
reveals that the state court relied on at least one Strickland prong but gives no indication
as to whether the holding was based on deficiency or prejudice or both. In such
situations, it makes sense under Harrington for a habeas court to review both prongs
pursuant to AEDPA to assure proper deference to the unspoken holding(s) actually relied
upon by the state court.4 See also Harrington, 131 S. Ct. at 785 (dismissing the “pure
speculation” that the state court members “may not have agreed on the reasons for
denying his petition”). This contrasts with the situation in Wiggins in which the state
court rendered a conclusion only on the deficiency prong. Because a petitioner must
satisfy both Strickland prongs in order to prevail, a court’s dismissal of an ineffective
assistance claim based solely on one prong says nothing about what the court thought
about the other prong. It would be inappropriate to presume the state court not only had
a finding in mind as to the unexplained prong but that this finding was against the
petitioner.5 See Childers, 642 F.3d at 986 (“Conversely [to Harrington], Wiggins and
Rompilla were cases where the Court was not left to speculate as to what the state court
had, and had not, adjudicated.”). Thus, in the situation where the state court adjudication
relies upon only one prong, deference has no proper role in reviewing the remaining
prong.

Review of Harrington supports our conclusion. In that decision, the Supreme
Court expressly limited application of its holding to cases in which the state court’s

4
Of course, a habeas court may decline to reach the second prong if it finds that the petitioner
cannot succeed on the first prong. E.g., Rogers v. Shepherd, 438 F. App’x 546, 549 (9th Cir. 2011).
5
This is particularly true when the court assumes a favorable showing on one prong when it is
easier to dispose of the claim on the other because “[c]learly . . . the state court cannot both assume
deficient performance and hold that counsel’s performance was not deficient.” Sussman, 642 F.3d at 534.
However, we see no difference among decisions in which the court states it is “assuming” success on one
prong with little or no discussion on the matter, e.g., Humphress v. United States, 398 F.3d 855, 859
(6th Cir. 2005), in which the court states it “need not determine” whether the petitioner can satisfy that
prong, e.g., United States v. Wynn, 663 F.3d 847, 852 (6th Cir. 2011), and in which the court does not
address the other prong altogether, e.g., United States v. Holder, 657 F.3d 322, 332 (6th Cir. 2011).
No. 10-5242 Rayner v. Mills Page 8

decision “is unaccompanied by an explanation.” Sussman, 642 F.3d at 534 (quoting
Harrington, 131 S. Ct. at 784). Moreover, “the Supreme Court in Harrington did not
disturb its approach in Wiggins” and “[w]e certainly cannot assume that the Court
overruled sub silentio its holding in Wiggins—a precedent so important to the daily work
of the lower federal courts,” id., which the Supreme Court cited in Harrington “without
the slightest hint of disapproval,” Childers, 642 F.3d at 986-87, and has continued to rely
upon in other decisions,6 e.g., Cullen v. Pinholster, 131 S. Ct. 1388, 1410 (2011) (citing
Rompilla, 545 U.S. at 390).

Thus, we do not find Harrington and the Supreme Court’s earlier decisions to be
in conflict. The principle that “§ 2254(d) applies when a ‘claim,’ not a component of
one, has been adjudicated,” Harrington, 131 S. Ct. at 784, does not necessarily mean that
each “component” must itself be reviewed under the § 2254(d) standard in every
situation. After all, both Wiggins and Rompilla recognized that the AEDPA standard
applies to the “claim” of ineffective assistance of counsel before evaluating an
unreviewed prong de novo. 539 U.S. at 519-20; 545 U.S. at 380; see also Porter,
130 S. Ct. at 452. The Wiggins and Rompilla line of cases work together with
Harrington to ensure application of AEDPA to an entire ineffective assistance claim.
In doing so, they mandate AEDPA deference to both prongs when the state court
decision summarily dismisses the claim without explanation; when a state court decision
relies only on one prong, the cases mandate AEDPA deference to that prong and de novo
consideration of the unadjudicated prong. This is a “straightforward approach” that
allows those Supreme Court decisions to “co-exist comfortably.” Childers, 642 F.3d at
986. We hold this to be the proper framework and affirm the district court’s denial of
Rayner’s habeas petition for the reasons provided below.

6
If the Harrington Court intended to overrule prior decisions rather than merely explain how the
law should apply in a new situation, “it surely would have said so directly, rather than act in such an
ambiguous manner.” Carmell v. Texas, 529 U.S. 513, 538 (2000); see also Vance v. Terrazas, 444 U.S.
252, 265 (1980).
No. 10-5242 Rayner v. Mills Page 9

B. Rayner’s Exhausted Claims

It is undisputed that the Tennessee Court of Criminal Appeals applied the proper
“clearly established federal law” for Rayner's claims; namely, the standard for
ineffective assistance of counsel claims in Strickland. We examine each exhausted claim
in turn.

1. Counsel’s Failure to Test Rayner for Trichomoniasis

Rayner alleges his trial counsel was ineffective for failing to test Rayner for
trichomoniasis and present those results to the jury. He also alleges, more generally, that
his lawyer failed adequately to present information about trichomoniasis in support of
his defense that if he did not have trichomoniasis, he could not be guilty of the sexual
assaults on the victim. The Tennessee Court of Criminal Appeals ruled that this did not
constitute deficient performance on the part of Rayner's counsel:

The petitioner's second complaint concerns counsel’s failure to pursue a
defense centering on the petitioner testing negatively for sexually
transmitted diseases. The post-conviction court found that the jury was
aware that the victim was suffering from trichomoniasis, but the
petitioner was not. The court noted that counsel investigated the defense
and determined that “it would not be a viable defense based on the fact
that the petitioner could have been an active carrier at the time of the
offense despite not being infected at the time he was tested.” At the
post-conviction hearing, counsel testified that because the petitioner had
not been specifically tested for trichomoniasis, the petitioner was not
exonerated as the perpetrator. Therefore, we cannot fault counsel for
choosing a different tactic for defense. We conclude that the petitioner
has failed to prove ineffective assistance as to these claims.

Rayner, 2006 WL 2000701 at *5 (internal citations omitted).

“[C]ounsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691.
The Supreme Court went on to note that in evaluating counsel's decisions whether to
investigate, a court must “apply[] a heavy measure of deference to counsel's judgments.”
Id. The state court determined that it was reasonable for counsel to make a strategic
decision not to pursue the medical defense, given the inconclusive nature of any results
No. 10-5242 Rayner v. Mills Page 10

that would be produced from testing Rayner so long after the alleged offenses. Rayner,
2006 WL 2000701 at *5. The district court found that the state court's determination on
this claim was a reasonable application of federal law. (Memorandum, Dist Ct. Docket
No. 90, at 15-16.)

Rayner's arguments that this was an unreasonable application of the Strickland
standard are unavailing. Rayner disagrees with the finding of the state and district courts
that the jury knew the victim had trichomoniasis and he did not. It is undisputed,
however, that counsel informed the jury that the State had no evidence Rayner had
trichomoniasis, and sexual contact is not the only way trichomoniasis can be transmitted.
Rayner, 2006 WL 2000701 at *2. From counsel's testimony at the post-conviction
evidentiary hearing, it seems clear that he reasonably determined his time was better
spent on other defense theories – namely, that the victim lied about the abuse. Id.

Rayner fails to show how the state court was unreasonable in applying the
Strickland standard to this ineffectiveness claim.

2. Counsel’s Failure to Ensure Ramsey’s Testimony

Rayner next alleges that his trial counsel was ineffective for failing to ensure that
Rayner's neighbor and co-worker, Leann Ramsey, testified at trial. The Tennessee Court
of Criminal Appeals ruled that Rayner did not show prejudice for counsel’s failure to
call Ramsey as a witness.

We note that the petitioner makes no definitive arguments as to what
further investigation would have revealed. The post-conviction court
implicitly accredited counsel’s testimony that he investigated all possible
witnesses for trial and searched the scene for leads. We can find no
reason to dispute the post-conviction court's finding. Additionally,
although the petitioner complained about counsel's failure to call Nealson
and Ramsey as witnesses at trial, he did not produce either witness to
testify at his post-conviction hearing. . . . We may not speculate on what
benefit these witnesses might have offered to the petitioner's case, nor
may we guess as to what evidence further investigation may have
uncovered. Accordingly, the petitioner has failed to demonstrate
prejudice in this regard.
No. 10-5242 Rayner v. Mills Page 11

Rayner, 2006 WL 2000701, at *5 (internal citations omitted.)

The district court held that Rayner had failed to establish prejudice, and therefore
found the state court's decision reasonable. (Memorandum, Dist Ct. Docket No. 90, at
15-16.) Rayner argues that Ramsey “could have testified that the [victim] ‘would say
things and do things if she didn't get what she wanted.’” Appellant Br. at 35. He
contends that “[h]aving any witness other than an accused child rapist testify that the
[victim] was known for dishonesty would undoubtedly have benefitted Mr. Rayner.” Id.
at 35-36 (emphasis in original).

Evidence that would merely benefit a defendant to some possible degree is not
enough to show prejudice. Rayner has failed to show why his trial counsel's failure to
call Ramsey as a witness leads to a “reasonable probability . . . sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. The district court properly
found that the state court summarized the appropriate facts and reasonably concluded
Rayner failed to show prejudice.

3. Counsel’s Failure to Investigate Nealson and Obtain His Testimony

Rayner also alleges his trial counsel failed to investigate David Nealson, a
co-worker, as a potential suspect, and call Nealson as a witness. The Tennessee Court
of Criminal Appeals ruled that Rayner had failed to show that trial counsel's performance
was deficient, or that his failure to produce Nealson as a witness prejudiced the outcome
of the case. Rayner, 2006 WL 2000701, at *5.

The district court held the state court reasonably applied the Strickland standard
to the facts at issue. (Memorandum, Dist Ct. Docket No. 90, at 15-16.) It further
credited the testimony of Rayner's trial counsel that he had sought to locate Nealson by
going to the motel where Rayner claimed Nealson worked, and trying to find out if
Nealson even existed by checking with his contacts at the police department. (Id. at 6.)

Rayner has not provided any basis for finding the state court's decision
unreasonable. As in the state court, Rayner failed to bring Nealson as a witness in the
district court. The state court noted that Rayner could not prove prejudice, as it could
No. 10-5242 Rayner v. Mills Page 12

not “speculate on what benefit [Nealson] might have offered to the petitioner's case;” nor
could it “guess as to what evidence further investigation may have uncovered.” Rayner,
2006 WL 2000701, at *5.

Rayner failed to add to the record in any meaningful way to show that the state
court's conclusions were an unreasonable application of clearly established federal law
sufficient to grant federal habeas relief under 28 U.S.C. § 2254(d).

4. Counsel’s Failure to Include Presentence Report on Direct Appeal

Rayner alleges that his trial counsel was ineffective for failing to include his
presentence report in the record on direct appeal, thereby foreclosing the appeal court's
ability to review his sentencing claims. The Tennessee Court of Criminal Appeals ruled
that Rayner met the performance prong of Strickland, but failed to show prejudice.

[T]he petitioner failed to argue in either the lower court or this court how
he was prejudiced by counsel's failure to ensure the presentence report
was included in the direct appeal record. Prejudice will not simply be
presumed by this failure; it must be specifically alleged and proven. It is
not the job of this court to ferret out potential problems, thereby serving
the function of both court and counsel. The petitioner is not entitled to
relief on this issue.

Rayner, 2006 WL 2000701, at *6 (internal citations omitted).

Rayner argues that the state and district court made an “unreasonable
determination of the facts” in holding that Rayner failed to argue prejudice. Appellant
Br. at 37. Rayner's failure to argue prejudice sufficiently in the state and district courts
does not constitute a factual determination - the state court concluded on a legal basis
that Rayner did not “specifically allege[] and prove[]” prejudice. Rayner, 2006 WL
2000701, at *6.

In any case, Rayner fails to show how trial counsel’s failure to include the
sentencing report would have resulted in a different outcome on appeal. Rayner
contested the trial court's application of consecutive sentencing under Tenn. Code Ann.
§ 40-35-115, which allows courts to impose consecutive sentencing if one of seven
No. 10-5242 Rayner v. Mills Page 13

criteria applies. The trial court found that consecutive sentences were appropriate based
on two criteria: first, that Rayner was

convicted of two (2) or more statutory offenses involving sexual abuse
of a minor with consideration of the aggravating circumstances arising
from the relationship between the defendant and victim or victims, the
time span of defendant's undetected sexual activity, the nature and scope
of the sexual acts and the extent of the residual, physical and mental
damage to the victim or victims.

Id. § 40-35-115(b)(5).

Second, the trial court found that Rayner was “sentenced for an offense
committed while on probation.” Id. § 40-35-115(b)(6).

Rayner contends the trial court was not justified in applying the enhancements
because it did not make specific findings about the “aggravating circumstances” of the
sexual abuse. The presentence report Rayner faults his attorney for not producing,
however, provides a more than sufficient basis for the “aggravating circumstances.”

That report states sexual abuse happened for an undetermined period within a
range of three years. (Investigation Report, Dist Ct. Docket No. 14-9, at 6.) It also
contained statements from the victim's foster parent and counselor that she has sustained
serious emotional and psychological damage because of the sexual abuse which Rayner
inflicted on her. (Id. at 13-16.) Rayner fails to address any of this substantive
information provided in the presentence report, or show how a new sentencing hearing
would likely result in a different outcome. Rayner therefore does not show how the state
court’s holding that he had not shown prejudice was unreasonable.7

Rayner's arguments about the other enhancement factor also fail to show the state
court's decision resulted in an unreasonable application of the law. Rayner contends that
“such a dramatic increase in sentence called into doubt the fundamental fairness of his
sentencing.” Appellant Br. at 40-41.

7
Rayner submits that a Tennessee court “refused to apply § 40-35-115(b)(5) on grounds that are
identical to” this case in State v. Hayes, 899 S.W.2d 175, 187 (Tenn. Crim. App. 1995). Our comparison
of the facts in Hayes reveals that Rayner’s criminal conduct was far more egregious.
No. 10-5242 Rayner v. Mills Page 14

Rayner’s argument fails for two reasons. First, Rayner fails to acknowledge that
the other sentencing enhancement would have justified consecutive sentences. Second,
Rayner himself concedes that Tennessee courts have endorsed the application of
consecutive sentencing even in cases of misdemeanor probation.

Rayner has not met his burden of showing that it is more likely than not that had
his counsel included the presentence report on direct appeal, “the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694.

C. Procedurally Defaulted Claims

For a federal court to reach the merits of a petitioner's claims, the petitioner must
show he “exhausted the remedies available in the courts of the State.” 28 U.S.C.
§ 2254(b)(1)(A); Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). Proper
exhaustion requires that a petitioner present every claim in the federal petition to each
level of the state courts, including the highest state court to which the petitioner is
entitled to appeal. O'Sullivan v. Boerckel, 526 U.S. 838, 847-48 (1999). Where a
petitioner fails to submit a claim to the state courts, a district court must dismiss his
petition so that he might go back to the state court and properly present the claims. Rose
v. Lundy, 455 U.S. 509, 522 (1982).

If a petitioner has not exhausted his claims, but is now procedurally barred from
doing so, he must show “cause for the noncompliance” and “actual prejudice resulting
from the alleged constitutional violation.” Wainwright v. Sykes, 433 U.S. 72, 84 (1977).
Procedural default may also be excused “where a constitutional violation has probably
resulted in the conviction of one who is actually innocent[.]” Murray v. Carrier,
477 U.S. 478, 496 (1986).

1. Failure to Test Rayner’s Wife and Ensure Her Testimony

Rayner argues that his trial counsel was ineffective for failing to have Rayner's
wife, Connie Rayner, tested for trichomoniasis, Appellant Br. at 29, and have her testify
at trial. Id. at 33-35. Respondent contends that this claim is procedurally defaulted, as
it was never raised in state court and cannot be raised now. Rayner attempts to cast his
No. 10-5242 Rayner v. Mills Page 15

current claim for counsel’s failure to test his wife for trichomoniasis as a part of his
claim for failure to investigate. He thus argues his claims all “fairly relate” to the same
underlying claim that his trial counsel failed to investigate.

This argument fails. Even the same claim, if raised on different grounds, is not
exhausted for the purpose of federal habeas review. Lyons v. Stovall, 188 F.3d 327,
332-33 (6th Cir. 1999); see also Pillette v. Foltz, 824 F.2d 494, 497-98 (6th Cir. 1987)
(finding that the “doctrine of exhaustion requires that the same claim under the same
theory be presented to state courts before raising it in a habeas petition”; submission of
different grounds for ineffective assistance claim in state than in federal court did not
constitute exhaustion). While Rayner raised a claim for failure to investigate a defense
about trichomoniasis, he never raised the issue of his wife's testimony or the failure to
test his wife, either as separate claims or as part of an overarching failure to investigate
claim.

Rayner argues that the State mistakenly conflated his contentions about counsel’s
failure to have his wife tested for trichomoniasis with counsel’s failure to ensure his
wife's testimony. This cannot be reconciled with how his claims were organized in his
Amended Petition to the district court: having his wife tested for trichomoniasis was
organized under the claim for counsel’s failure to call his wife as a witness. (Amended
Petition, Dist. Ct. Docket No. 28 at 15-16.)

Rayner seems to concede that the district court properly found procedural default
vis-a-vis his claim of failure to call his wife as a witness. Appellant Reply Br. at 5-6.
In any case, Rayner makes no affirmative argument that the district court erred in finding
procedural default as to his claim about his wife's testimony. Instead, Rayner only
reiterates his arguments about counsel's failure to present an adequate representation of
the trichomoniasis defense, discussed supra. Accordingly, he has waived this argument.
Ahlers v. Schebil, 188 F.3d 365, 374 (6th Cir. 1999).

Rayner also makes no argument that this procedural default should be excused,
under either the cause-and-prejudice or miscarriage of justice exceptions. A petitioner
can show cause if he can “show that some objective factor external to the defense
No. 10-5242 Rayner v. Mills Page 16

impeded counsel's efforts to comply with the State's procedural rule.” Murray,
477 U.S. at 488. Examples of such objective factors are “‘interference by officials,’
attorney error rising to the level of ineffective assistance of counsel, and ‘a showing that
the factual or legal basis for a claim was not reasonably available.’” Hargrave-Thomas
v. Yukins, 374 F.3d 383, 388 (6th Cir. 2004) (quoting McCleskey v. Zant, 499 U.S. 467,
493-94 (1991)).

Rayner has not argued – and there is no indication in the record – of any external
factor which served as a barrier to bringing a claim of ineffective assistance on these
grounds in the state court. That Rayner himself attempts to cast this claim as only a
subset of his other ineffectiveness claims (for failure to investigate and failure to present
other testimony) points to the fact that the grounds existed before to bring this claim;
Rayner simply failed to do so. This is insufficient to excuse his procedural default.

III. CONCLUSION

After careful review, we hold that none of Rayner’s claims of ineffective
assistance of counsel satisfy the demanding standards contained in 28 U.S.C. § 2254(d).
The district court’s denial of the writ of habeas corpus is AFFIRMED.