                       NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                  File Name: 12a0884n.06

                                                     No. 09-6137

                                 UNITED STATES COURT OF APPEALS
                                      FOR THE SIXTH CIRCUIT                                                 FILED
                                                                                                      Aug 10, 2012
 LEONARD CATALANO,                                               )                             LEONARD GREEN, Clerk
                                                                 )
            Petitioner-Appellant,                                )
                                                                 )    ON APPEAL FROM THE UNITED
 v.                                                              )    STATES DISTRICT COURT FOR THE
                                                                 )    MIDDLE DISTRICT OF TENNESSEE
 ROLAND COLSON, Warden                                           )
                                                                 )
            Respondent-Appellee.                                 )



            Before: CLAY and KETHLEDGE, Circuit Judges, DOW, District Judge.*

            DOW, District Judge. Petitioner Leonard Catalano entered a guilty plea to three aggravated

 sexual batteries upon three young girls–his daughter, his “step-granddaughter,” and one of his

 daughter’s close friends–and received a sentence of 32 years. On direct appeal, the Tennessee Court

 of Criminal Appeals affirmed his sentence and the Tennessee Supreme Court denied his application

 to appeal. Petitioner’s subsequent state post-conviction petition–asserting that his guilty plea was

 unknowing and involuntary due to ineffective assistance of counsel–was unsuccessful. Catalano

 then sought a writ of habeas corpus in federal court under 28 U.S.C. § 2254, asserting three grounds

 for relief. The district court denied Catalano’s petition, but certified for appeal one of Catalano’s

 three claims of ineffective assistance of counsel. This Court subsequently expanded the certificate

 of appealability to include two claims. We now affirm the judgment of the district court.


        *
          The Honorable Robert M. Dow Jr., United States District Judge for the Northern District of Illinois, sitting by
designation.
                                                    I.

        We review de novo the district court’s denial of a petition for a writ of habeas corpus.

Tibbetts v. Bradshaw, 633 F.3d 436, 441 (6th Cir. 2011). A prisoner is not entitled to habeas relief

if he has procedurally defaulted a claim (absent good cause) or if the state court has adjudicated his

claim on the merits and the state court’s decision was neither contrary to, nor an unreasonable

application of, clearly established Supreme Court precedent. See Thomas v. Bell, 580 F.3d 423, 437

(6th Cir. 2009). Because Catalano filed this case after April 29, 1996, the case is subject to the terms

of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See, e.g., Williams v. Taylor, 529

U.S. 362 (2000).

        A federal habeas petitioner seeking relief from state imprisonment must first exhaust state

court remedies. 28 U.S.C. § 2254(b)(1). To comply with the exhaustion doctrine, the petitioner must

fairly present the “substance” of his federal habeas claim to the state courts so that the state judiciary

has the first opportunity to hear the claim. Lyons v. Stovall, 188 F.3d 327, 331 (6th Cir. 1999). The

petitioner must present both the factual and the legal bases of the claim. Hicks v. Straub, 377 F.3d

538, 552 (6th Cir. 2004). In other words, a petitioner must present “the same claim under the same

theory” to the state court. Id. at 552 (citation and internal quotation marks omitted); see also Gross

v. Warden, Lebanon Correctional Institution, 426 F. App’x 349, 355 (6th Cir. 2011). It is not

sufficient that all the facts necessary to support the federal claim were before the court or that the

petitioner made a “somewhat similar” state-law claim. Anderson v. Harless, 459 U.S. 4, 6 (1982)

(per curiam) (citing Picard v. Connor, 404 U.S. 270, 276–77 (1971)).

        If a petitioner fails to exhaust his claims, but still has an avenue open by which to do so, his

petition is subject to dismissal for failure to exhaust state remedies. See 28 U.S.C. § 2254(b)(1)(A).


                                                    2
If the petitioner no longer may present his claims to a state court because of a procedural default, the

petitioner also has forfeited the claims for purposes of federal habeas review absent a showing of

“cause” and “prejudice.” McMeans v. Brigano, 228 F.3d 674, 680 (6th Cir. 2000). The existence

of cause “ordinarily turn[s] on whether the prisoner can show that some objective factor external to

the defense impeded [the defense’s] efforts to comply with the State’s procedural rule.” Murray v.

Carrier, 477 U.S. 478, 488 (1986). For example, a petitioner may demonstrate cause by showing

that “the factual or legal basis for a claim was not reasonably available” or that there was “some

interference by officials.” Id. (citations omitted). To demonstrate prejudice, “[t]he habeas petitioner

must show not merely that the errors at trial created a possibility of prejudice, but that they worked

to his actual and substantial disadvantage, infecting his entire trial with error of constitutional

dimensions.” Id. at 494 (emphasis in original) (alterations, citation, and internal quotation marks

omitted).

        A petitioner can procedurally default a claim in two ways. Williams v. Anderson, 460 F.3d

789, 806 (6th Cir. 2006). First, he may fail “to comply with state procedural rules in presenting his

claim to the appropriate state court.” Id. Second, a petitioner may default by failing “to raise a claim

in state court, and pursue that claim through the state’s ordinary appellate review procedures.”

Thompson, 580 F.3d at 437 (internal citations and quotation marks omitted); see also Deitz v. Money,

391 F.3d 804, 808 (6th Cir. 2004) (“A federal court is also barred from hearing issues that could

have been raised in the state courts, but were not[.]”).




                                                   3
                                                    II.

                                                    A.

        Petitioner Catalano first argues that his trial counsel was ineffective because counsel failed

to inform him prior to his guilty plea that sexual gratification was an element of the offense of

aggravated sexual battery. Respondent Ricky Bell contends that Catalano procedurally defaulted this

claim. The district court addressed this claim briefly, finding that Catalano failed to present the claim

to the state courts and therefore it was unexhausted. The district court did not make a finding that the

claim was procedurally defaulted.

        Turning first to the issue of procedural default, Petitioner does not presently have an available

state remedy for the litigation of his first claim. Tennessee’s Post-Conviction Procedure Act permits

only one post-conviction petition, and Catalano already has litigated one such petition. Tenn. Code

Ann. § 40-30-102(c) (2006). He has not articulated a ground for reopening it (see id. Tenn. Code

Ann. § 40-30-117), and he is barred by the statute of limitations from filing a second petition (see

Tenn. Code Ann. § 40-30-102(a)). Therefore, if his first claim is unexhausted, it has been

procedurally defaulted. Pudelski v. Wilson, 576 F.3d 595, 605 (6th Cir. 2009). “While in such

situations the exhaustion requirement is technically satisfied because there are no longer any state

remedies available to the petitioner, . . . the petitioner’s failure to have the federal claims considered

in the state courts results in a procedural default of those claims that bars federal review.” Id.

(citations omitted).

        Petitioner attempts to avoid procedural default by arguing that his first claim was covered by

his claim in state court, that his plea was unknowing and involuntary, and that counsel had failed to

give him enough information to fully evaluate his options. We considered a similar argument in


                                                    4
Gross, 426 F. App’x at 356-57, where the habeas petitioner claimed two instances of juror

misconduct before the Ohio courts, but failed to discuss a third instance of juror misconduct in his

appellate brief. Although the third instance had been raised in a motion for new trial, this Court

determined that the petitioner’s passing reference to the motion for new trial in his state court appeal

did not sufficiently raise the issue. In concluding that the claim had been procedurally defaulted, we

explained:

       The Supreme Court has held that “ordinarily a state prisoner does not ‘fairly present’
       a claim to a state court if that court must read beyond a petition or a brief (or a similar
       document) that does not alert it to the presence of a federal claim in order to find such
       material.” Baldwin [v. Reese], 541 U.S. [27] at 32 [(2004)]. Further, “the exhaustion
       doctrine requires a habeas applicant to do more than scatter some makeshift needles
       in the haystack of the state court record.” Martens v. Shanon, 836 F.2d 715, 717 (1st
       Cir. 1988). Rather, the petitioner must present the ground relied upon “face-up and
       squarely; the federal question must be plainly defined.” Id.; McNair v. Campbell, 416
       F.3d 1291, 1303 (11th Cir. 2005) (citing Martens); Mallory v. Smith, 27 F.3d 991, 995
       (4th Cir. 1994) (same).

Gross, 426 F. App’x at 357.

       In his post-conviction petition in state court, Catalano alleged (in support of his involuntary

plea claim) that counsel “failed to discuss the case or advise [the petitioner] of what steps were being

taken and what investigations were being done[.]” Catalano argued that counsel never discussed the

legal aspects or consequences of the case and that he never gave straight answers to Catalano’s

questions. He further alleged that counsel never apprised him of the tactics and strategies to be

employed in his defense and that he was never told of the minimum and maximum penalties of the

offense until the day of sentencing and that counsel never advised him of any available defenses.

       As grounds for his claim of ineffective assistance, Catalano maintained that counsel never

mentioned that he was a real estate attorney with no experience in criminal law. Catalano also



                                                   5
claimed that counsel never discussed the case with him, never advised him of his rights, and failed

to conduct any investigations to determine appropriate defenses. Catalano further asserted that

counsel failed to interview any of the witnesses for the State or the defense and failed to properly

prepare for trial.

        Significantly for present purposes, Catalano did not allege that counsel failed to explain the

elements of the offense with which he was charged. In his amended petition for post-conviction

relief, Catalano repeated his allegations, but again did not allege that counsel failed to explain the

elements of aggravated sexual battery. At the post-conviction relief hearing, Catalano testified about

the performance of trial counsel and acknowledged that trial counsel discussed the indictment with

him. But Catalano never alleged that counsel failed to explain the elements of the offense with which

he was charged. Nor was trial counsel asked whether he advised Catalano about sexual gratification

as an element of aggravated sexual battery.

        After the post-conviction court denied relief, Catalano filed an appeal in the Tennessee Court

of Criminal Appeals. Although Catalano raised ineffective assistance of counsel at that time, he still

did not raise a specific claim that counsel failed to apprise him that sexual gratification is an element

of aggravated sexual battery. Indeed, as the district court correctly noted, not only did Catalano fail

to raise this claim before the state courts, but he also failed to raise the specific allegation regarding

the sexual gratification element in his original or amended petition for writ of habeas corpus in the

district court. That specific claim appeared for the first time in Catalano’s response to Respondent’s




                                                    6
motion to dismiss, filed on April 10, 2007, more than five and a half years after Catalano entered his

guilty plea to the three counts of aggravated sexual battery.1

         Petitioner’s current claim rests on a theory which is distinct from the ones previously

considered and rejected in state court. Raising a general challenge to trial counsel’s effectiveness or

the voluntariness of his plea did not fairly present this issue to the state courts, and thus Catalano did

not give any of the state courts the opportunity to review this particular claim. He gave the state

courts many examples of his counsel’s alleged ineffectiveness and why he believed his plea was

involuntary, but he failed to present the specific argument on which he now relies until much later.

His argument therefore comes too late. See also Wong v. Money, 142 F.3d 313, 321-22 (6th Cir.

1998) (finding ineffective assistance of counsel claim procedurally defaulted where petitioner

advanced a new theory in federal court which was distinct from the theory considered and rejected

in state court); Pillette v. Foltz, 824 F.2d 494, 497-98 (6th Cir. 1987) (holding that the petitioner

failed to exhaust state court remedies for ineffective assistance of counsel claims where state courts

were presented with only one aspect of petitioner’s attorney’s performance, but not the aspect raised

in federal habeas review). In sum, because Catalano never properly presented this claim to the state

courts, the claim is procedurally defaulted. And because Catalano does not even attempt to show

cause for his default, it therefore is unexcused. See Awkal v. Mitchell, 613 F.3d 629, 646 (6th Cir.

2010) (en banc).



         1
           Petitioner’s amended federal petition stated that “Allison failed to explain to Catalano the elements of the
offense to which he was pleading, and failed to tell him the consequences of his plea by failing to adequately explain his
sentencing exposure. Thus, Catalano received ineffective assistance of counsel and was prejudiced by entering a plea that
was not knowing and voluntary.” Am. Pet. at 18-19. While Catalano’s amended petition asserted a general challenge to
trial counsel’s failure to explain the elements to him, Petitioner presented a specific argument regarding the “sexual
gratification” element for the first time in response to Respondent’s motion to dismiss.


                                                            7
       Petitioner’s contention that his first claim avoids procedural default because the state post-

conviction appellate court “actually identified the gist of the claim and passed judgment on it, thereby

satisfying the concerns of federal-state comity” (Pet. Br. at 39-40) is unavailing. According to

Petitioner, he raised the claim by pointing out “trial counsel’s failure to adequately communicate with

him,” and the Tennessee Court of Criminal Appeals addressed that claim in rejecting Petitioner’s

assertion that his plea was “unknowing” because, due to Allison’s errors, he was unable to “fully

evaluate potential trial/settlement options.” (Pet. Br. at 38-39 (quoting Catalano v. State, 2006 WL

12770, at *8)). The relevant portion of the opinion states:

       The transcript from the plea hearing herein reveals that the trial court carefully and
       correctly informed the petitioner regarding his constitutional rights, and specifically
       asked if he understood that he was waiving those rights by pleading guilty. The
       petitioner responded in the affirmative. Further, he stated that he understood the plea
       agreement and the significance of the guilty plea hearing, and was entering his guilty
       plea voluntarily. The petitioner also acknowledged that he was satisfied with counsel's
       representation. Accordingly, we determine that the petitioner’s guilty plea was
       knowing and voluntary.

       The petitioner claims that trial counsel was ineffective because he failed to effectively
       communicate with the petitioner. Specifically, the petitioner contends that trial
       counsel “did not fully interview and investigate [the petitioner’s] witnesses,” and did
       not “fully explain what was going on in the case to [the petitioner] which resulted [in
       an] unknowing and involuntary guilty plea” because the petitioner was unable to
       “fully evaluate potential trial/settlement options.” We have already determined that
       the petitioner’s guilty plea was knowing and voluntary. Furthermore, the record does
       not preponderate against the finding that trial counsel was effective. Explicit in the
       post-conviction court’s findings and conclusions was that the court accredited the
       testimony of trial counsel rather than that of the petitioner. As stated previously,
       credibility determinations are entrusted to the trial court. State v. Odom, 928 S.W.2d
       18, 23 (Tenn. 1996). The post-conviction court accepted as true the testimony of trial
       counsel concerning the circumstances of the plea and the conversations leading up to
       that decision, including the fact that trial counsel met with the petitioner and discussed
       not only the discovery materials, but the plea offer and the ramifications of pleading
       guilty. The record not only supports the determination of the post-conviction court,
       but the petitioner has also failed to establish that he suffered any prejudice as a result
       of trial counsel’s representation and failed to show that there was a reasonable


                                                   8
          probability that but for trial counsel’s errors he would not have pleaded guilty and
          would have gone to trial. This issue is without merit.

Catalano, 2006 WL 12770, at *8. Unfortunately for Petitioner, there simply is no way to tease out

of that opinion any hint that the court identified or passed judgment on even the “gist” of the claim

that Petitioner now asserts. The opinion does not even mention the elements of any charge against

Petitioner, much less the specific element of the specific charge that Petitioner now claims counsel

neglected to discuss with him prior to his guilty plea. Thus, even if Petitioner is correct in asserting

that the arguments in Respondent’s brief do not refute Petitioner’s contention that the state courts

addressed the substance of his first claim, that contention stands refuted by the state court decision

itself.

                                                   B.

          Petitioner next argues that trial counsel was ineffective for failing “to present important

mitigating testimony at Catalano’s sentencing.” Specifically, Petitioner contends that trial counsel

should have called his ex-wife and daughters as witnesses. The district court concluded that

Petitioner failed to prove prejudice as a result of trial counsel’s failure to call these witnesses.

          Before delving into the required analysis under Strickland v. Washington, 466 U.S. 668

(1984), however, we pause to take up an issue addressed by Petitioner in his reply brief relating to the

applicability of the Supreme Court’s holding in Cullen v. Pinholster, 131 S. Ct. 1388 (2011), that

federal habeas review of state court proceedings is limited to the record before the state court. Cullen

comes into play because the district court held an evidentiary hearing in which it received evidence

beyond that contained in the state court record. Notwithstanding the Supreme Court’s subsequent

ruling in Cullen, Petitioner suggests that this Court may consider the newly developed evidence



                                                    9
elicited in the district court because the state court factual record was not only incomplete, but

“contained a stark falsehood.” We need not–and therefore do not–address whether Cullen bars

consideration of the additional evidence taken by the district court because Petitioner cannot satisfy

the “prejudice” prong of the Strickland test regardless of whether the record is confined to the state

court proceedings or expanded to include the additional federal court testimony.

       Turning back to the Strickland test, we note first the familiar two prongs of the analysis:

ineffectiveness and prejudice. See, e.g., Williams v. Anderson, 460 F.3d 789, 800 (6th Cir. 2006)

(“Counsel is ineffective if his or her conduct falls below an objective standard of reasonableness and

causes the petitioner prejudice.”) (citing Strickland, 466 U.S. at 688). As Petitioner points out, the

state court decisions complicate the “ineffectiveness” analysis, which may explain why the district

court skipped ahead to the issue of “prejudice” in disposing of Petitioner’s claim. In particular, we

note that the state post-conviction trial court’s observation that “no witnesses testified on behalf of

the petitioner” at his sentencing hearing overlooks the fact that two witnesses did in fact present

testimony on Petitioner’s behalf. We also agree with Petitioner’s suggestion that the state post-

conviction appellate court’s discussion of the legal basis for its disposition of Petitioner’s claim of

ineffective assistance at sentencing was rather cryptic. Nevertheless, even if we were to assume that

(1) Petitioner’s trial counsel should have called Petitioner’s ex-wife and daughters to testify at

Petitioner’s sentencing, (2) they would have given the same testimony that they gave in the district

court, (3) despite Cullen, we may consider that testimony, and (4) counsel was ineffective for failing

to call those witnesses, Petitioner’s claim to relief still founders because he cannot show “prejudice.”

       Prejudice is shown when “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S.


                                                  10
at 694. Petitioner’s proof must establish “[a] reasonable probability [that] is a probability sufficient

to undermine confidence in the outcome.” Id. Here, given the state courts’ description of the offenses

to which Petitioner entered a guilty plea–offenses that occurred with young girls who were 4 to 5

years of age–and the nature of Petitioner’s conduct in committing those offenses, we agree with the

district court’s assessment that, “in all probability, the daughters’ and ex-wife’s testimony would not

have altered the trial court’s decision.” The state courts considered the girls’ ages, the custodial-trust

relationship between Catalano and his victims, and the “great personal injuries upon the victims” (see

Catalano, 2003 WL 21877933, at *5) as warranting Petitioner’s consecutive sentences. In these

circumstances, we agree with the district court’s assessment that Petitioner’s prior behavior as a

“wonderful father and husband” would not have persuaded the trial court to take a more lenient view

of his grossly offensive, inappropriate, and unlawful conduct toward his youngest daughter, his “step-

granddaughter,” and his daughter’s friend, who were entrusted to his care and repeatedly abused.

        Petitioner argues that a slight difference in sentence can show prejudice under Strickland. See

Glover v. United States, 531 U.S. 198, 203 (2001) (“Authority does not suggest that a minimal

amount of additional time in prison cannot constitute prejudice. Quite to the contrary, our

jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance.”).

According to Petitioner, if the sentencing judge had heard the testimony of his ex-wife and daughters,

he would not have found Petitioner eligible for consecutive sentencing and his sentence would have

been at least 20 years shorter. In support of this argument, Petitioner cites State v. Hayes, 899 S.W.2d

175 (Tenn. Crim. App. 1995), in which the defendant was convicted of two isolated instances of (i)

french kissing his daughter and (ii) touching her breast while rubbing her back. The trial court




                                                   11
imposed consecutive sentences for the two separate incidents of aggravated sexual battery, but the

appellate court reduced his sentence from consecutive terms to concurrent terms on appeal.

       Petitioner’s reliance on Hayes is misplaced, because this case presents far more egregious

conduct underlying the offenses of conviction. Unlike the defendant in Hayes, Petitioner abused all

of his victims, each substantially younger than the victim in Hayes, for more than a year, while acting

as the girls’ caretaker. Furthermore, the nature and scope of his sexual acts far exceeded those in

Hayes and involved sexual games as well as direct sexual acts. The games included mock beatings,

masturbation, voyeurism, and exhibitionism. Petitioner touched all three of the victims’ vaginal areas

with his hand and also acknowledged oral vaginal contact with his daughter and step-granddaughter.

Based on these factors, the more factually comparable state sentencing decisions were cited by the

Tennessee appellate court (see Catalano, 2003 WL 21877933 at *3-5). Hayes provides little guidance

for us and no assistance to Petitioner here in establishing “prejudice” under the second prong of

Strickland.

       In sum, we affirm the judgment of the district court; Petitioner’s first claim is procedurally

defaulted and his second claim fails to satisfy the “prejudice” requirement under Strickland.




                                                  12
