                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 07a0241p.06

                     UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                         X
                                 Petitioner-Appellant, -
 JOHNNY O. CLARK,
                                                          -
                                                          -
                                                          -
                                                              No. 04-6373
             v.
                                                          ,
                                                           >
 ROBERT WALLER,                                           -
                                 Respondent-Appellee. -
                                                         N
                           Appeal from the United States District Court
                        for the Western District of Tennessee at Memphis.
                         No. 03-02951—J. Daniel Breen, District Judge.
                                      Argued: March 8, 2007
                                Decided and Filed: June 25, 2007
       Before: BOGGS, Chief Judge; and BATCHELDER and GRIFFIN, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: C. Mark Pickrell, WALLER, LANSDEN, DORTCH & DAVIS, Nashville, Tennessee,
for Appellant. John H. Bledsoe, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee,
for Appellee. ON BRIEF: C. Mark Pickrell, WALLER, LANSDEN, DORTCH & DAVIS,
Nashville, Tennessee, for Appellant. John H. Bledsoe, OFFICE OF THE ATTORNEY GENERAL,
Nashville, Tennessee, for Appellee.
                                       _________________
                                           OPINION
                                       _________________
        BOGGS, Chief Judge. Johnny O. Clark appeals the district court’s summary dismissal of
his petition for a writ of habeas corpus. Clark was convicted of first-degree murder and, after
exhausting his state post-conviction and appellate remedies, petitioned the district court under 28
U.S.C. § 2254, contending that his conviction was based on insufficient evidence, that his trial
counsel was constitutionally ineffective, and that his post-conviction counsel was constitutionally
ineffective. On appeal, he maintains the latter two claims, and contends that the district court erred
in summarily dismissing his petition without ordering a response and reviewing the state court
transcripts. We affirm.
                                                  I
       According to the opinion of the Tennessee Court of Criminal Appeals on direct appeal of his
conviction, early in the morning of March 15, 1995, Clark entered the house of his mother, where

                                                  1
No. 04-6373           Clark v. Waller                                                           Page 2


he had usually lived until recent altercations between him and other residents, to retrieve some
belongings. Tony Valentine, Clark’s brother, asked Clark to leave when he appeared to be seeking
a confrontation with Deron Cathey, another guest in the house. Valentine ultimately escorted Clark
out of the house. A few hours later Clark returned and knocked on the door, at which point his
mother allowed him to remain. Valentine awoke shortly thereafter to the sound of gunfire, and
another houseguest, Mose Dire, observed Clark shooting Cathey, who was on a bed, unarmed and
pleading for his life. At trial, Clark testified that Cathey had threatened him as he was retrieving
belongings from a dresser, walked to the part of the house where guns were kept, and then
approached him again, at which point Clark began shooting in self-defense. He further testified that
three days earlier, Cathey had chased him from the house brandishing a weapon. Cathey was
pronounced dead a few hours later, from multiple gunshot wounds. See State v. Clark, 1998 WL
170141 at *1-*2 (Tenn. Crim. App.).
         After conviction by a jury, Clark appealed to the Tennessee Court of Criminal Appeals,
claiming that the evidence was insufficient to convict him of first-degree murder; his appeal was
denied. Id. at *4. He filed a petition for post-conviction relief with the county criminal court,
contending that he had been denied effective assistance when his trial counsel failed to call Felix
Lockett as a defense witness. According to the opinion of the Court of Criminal Appeals on review
of the post-conviction proceeding, Clark v. State, 2002 WL 1841630 (Tenn. Crim. App.), Clark
testified in that proceeding that Lockett was the only other person present in the room when he shot
Cathey. He testified that Lockett had been unexpectedly admitted to the hospital roughly three
weeks before start of trial, and subsequently died. He claimed that his counsel failed to secure
Lockett’s testimony, even though Clark had informed him that the testimony would support his
defense. He sought to introduce a typewritten document that purported to be an affidavit made by
Lockett, offering an account supporting Clark’s self-defense theory, and at odds in a number of
details with the account offered by other witnesses at trial. The post-conviction court refused to
admit the document, on the grounds that a proper foundation for its authenticity had not been
established.
        Clark’s trial counsel testified that he had attempted to locate and interview Lockett, along
with all others who had been present at the house at the time of the shooting. He testified that his
unsuccessful efforts included two visits to Lockett’s house, sending investigators to the house,
speaking to individuals of Lockett’s acquaintance, and twice issuing subpoenas for him. He testified
that he believed the state had also subpoenaed Lockett. During the course of his investigations, he
learned that Lockett was elderly, and possibly experiencing “some problem with his mental
thinking.” He had been informed that Lockett had suffered a head injury that put him in the hospital,
and claimed to have concluded that Lockett would not make a good defense witness. He testified
that he kept Clark informed of the Lockett situation, and that Clark chose not to seek a continuance.
         Clark’s petition for post-conviction relief was denied after an evidentiary hearing. On appeal
of this denial to the Tennessee Court of Criminal Appeals, Clark raised for the first time his
contention that trial counsel had also been ineffective for his failure to call Jack Wafford, Clark’s
cousin, who he claimed would have testified that Cathey had showed him a gun at some point before
the shooting, intimating that it was meant for Clark. The trial court had ruled that Wafford could
testify for the limited purpose of establishing Cathey as the initial aggressor. Before he was called
to the stand, however, the state objected, indicating that it had asked Clark’s counsel for a recording
of a defense interview with Wafford (who had claimed that the interview had been taped), but that
counsel had been unable to find it. Trial counsel responded by claiming that his investigator said
the interview had not in fact been taped, but that he would nevertheless not be calling the witness
to testify. Clark claimed on appeal that his counsel had withdrawn Wafford as a witness because
of his deficiency in failing to provide the required materials. The Court of Criminal Appeals held
that the claim had been waived by his failure to present it in his post-conviction petition, and further
observed that, even if it had not been waived, it would have failed on the merits because Clark had
No. 04-6373            Clark v. Waller                                                             Page 3


made no showing of a likelihood of a different outcome had Wafford been permitted to testify. The
Court of Criminal Appeals affirmed the post-conviction court’s denial of relief. Clark v. State, 2002
WL 1841630 at *10. Permission to appeal to the state supreme court was denied.
         In his pro se federal habeas petition, Clark alleged that the evidence used to convict him was
insufficient (in particular, that there was insufficient evidence of the deliberation element necessary
for a first-degree murder conviction, and that the evidence instead pointed to self-defense), that his
trial counsel and post-conviction counsel were ineffective (trial counsel for failing to call Lockett
and Wafford, and post-conviction counsel for failing to raise trial counsel’s ineffectiveness with
respect to Wafford), and that he had exhausted his state remedies for these claims. In an
accompanying memorandum, he stated the purported factual basis for his claims. The district court
summarily dismissed Clark’s petition, without ordering the state to respond, and, as far as the record
indicates, without directly examining the records of the state court proceedings. In its order, the
district court also denied Clark’s requests for a certificate of appealability and leave to proceed in
forma pauperis. An order of this court granted a certificate of appealability and pauper status, and
sua sponte ordered counsel appointed for Clark. Clark now appeals the denial of his ineffective
assistance claims, and argues that the district court erred by summarily dismissing his petition; he
explicitly abandons his insufficiency of the evidence claim.
                                                    II
        Whether the district court erred in summarily dismissing Clark’s petition is a question of law
that we review de novo. Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004). Clark concedes that
state court factual findings are presumed to be correct in a federal habeas proceeding, and that this
presumption can only be overcome with “clear and convincing evidence.” 28 U.S.C. § 2254 (e)(1).
He argues, however, that the procedural rules of 28 U.S.C. § 2243 and Rule 4 of the Rules
Governing § 2254 Cases require a more probing inquiry than the district court conducted.
        28 U.S.C. § 2243 provides that “[a] court . . . entertaining an application for a writ of habeas
corpus shall forthwith award the writ or issue an order directing the respondent to show cause why
the writ should not be granted, unless it appears from the application that the applicant or person
detained is not entitled thereto.” Clark argues that his application was not facially defective, and
that the district court was thus required to order a response. Similarly, Rule 4 of the Rules
Governing § 2254 Cases states that “[i]f it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the
petition . . . .” If not, the rule instructs the district court to “order the respondent to file an answer,
motion, or other response . . . or to take other action the judge may order.” Clark again concludes
from that his petition, insofar as it is not facially defective, could not be summarily dismissed.
        Clark’s argument, essentially, is that if the district court needs to go outside the four corners
of the petition (and its attachments) in order to dismiss it—if, in other words, the petition facially
states a claim—it can not do so summarily. In particular, he contends that because he has raised
factual questions, the district court was required to review the state court record directly, rather than
rely on the state courts’ factual determinations.
        This question does not appear to have been squarely addressed by our precedents. Clark
relies exclusively on Loveday v. Davis for the proposition that, as he puts it, where a state court’s
factual findings are in question, “[s]ummary dismissal of the petition without examination of the
record would be improper.” Loveday, 697 F.2d 135, 138 (6th Cir. 1983). In fact, Loveday was in
no way so expansive, and, read correctly, its holding and the reasoning behind it point to a much
different conclusion.
No. 04-6373               Clark v. Waller                                                                         Page 4


        Loveday was decided under the presumption of correctness accorded to state court factual
findings codified in the then-current version of 28 U.S.C. § 2254(d). The statute contemplated eight
exceptions to that presumption, and the court observed that if a petitioner sought to avail himself of
one of the enumerated exceptions, his petition “must at a minimum allege or provide indicia of the
same” in order to trigger an inquiry that would require the district court to examine the trial record.
697 F.2d at 138. We noted a sister circuit’s evaluation of a party’s suggestion that, where a petition
was based on an insufficiency of the evidence claim, it could never be appropriate to dismiss without
an examination of the record, and approved that court’s conclusion that “this is not so where . . . the
testimony at the trial is summarized in the state appellate court’s opinion and the petitioner does not
quarrel with that summary . . . ,” but instead quarrels with the factual inferences drawn from it. Id.
at 139-40 (quoting Davis v. Franzen, 671 F.2d 1056, 1057 (7th Cir. 1982)).
        Since Loveday was decided, the applicable level of deference to state fact-findings has, if
anything, become greater under the provisions of AEDPA. See 28 U.S.C. § 2254(e)(1). Thus, while
Loveday was decided under different statutory provisions, nothing in the intervening revisions
undermines its analysis. Indeed, this court recently acknowledged that Loveday “prohibits the
imposition of a general rule requiring district courts to review the transcript in all cases . . . .” Nash
v. Eberlin, 437 F.3d 519, 525 (6th Cir. 2006). In Nash, the panel vacated the district court’s grant
of a habeas petition based on an insufficiency of the evidence claim, and remanded for review of the
transcript where, though neither party appeared to challenge the accuracy of the state court’s
summary of the evidence, the state contended that the transcript included relevant evidence that
“simply was not discussed in the state court’s opinion.” Ibid.
        Here, Clark makes no such claim. Though he takes issue with the state court’s factual
conclusions, he does not offer any specific dispute with the evidence, as summarized by the state
courts, on which those conclusions were based. For example, as part of his ineffective assistance
claim, Clark asserts that his counsel “did not vigorously pursue interviewing witnesses whose
testimony could have assisted in developing [his] defense . . . .” He does not, however, allege any
way in which the factual record would contradict the state court’s opposite conclusion that trial
counsel’s efforts were sufficient. Indeed, the most specific factual dispute Clark offers in his brief
is an alleged uncertainty concerning the precise number of subpoenas that had been issued for
Lockett. Setting aside the question whether such a detail is in any way material to his claim, Clark
crucially fails to take issue with the accuracy of the state court’s summary of his counsel’s testimony
on this question, or suggest any omission from the summary of testimony in the record that might
bear upon it. In other words, he does not quarrel with the state court’s recitation of the relevant
evidence, nor does he point to gaps in it—either of which might indeed require a review of the
transcript —but only disagrees with the conclusions the state court drew from the evidence; and he
gives no reason that the district     court would have benefitted from reviewing the transcript in
evaluating those conclusions.1 Reasoning from the same principles this court approved in Loveday,
the Seventh Circuit has concluded that
         the district court need not examine the trial records if two conditions are satisfied:
         (1) the state court opinions summarize the trial testimony or relevant facts; and


         1
           A similar analysis applies to the “factual” dispute he urges in his reply brief, whether trial counsel failed to
call Wafford because, as he contends, he had deficiently failed to make the proper disclosures and sought to deflect
attention from his mistake, or, as the trial court concluded, because he had other, legitimate reasons for deciding not to
put him on the stand. Again, Clark does not take issue with the state court’s summary of the relevant testimony, or point
to any omissions from it; he simply disagrees with the conclusion the state court arrived at, making speculative at best
the notion that the district court’s review of the evidence would have led to a different conclusion had it included a
review of the transcripts. Indeed, Clark himself emphasizes the speculative nature of his claims in his brief, where he
points out that “each of the other relevant findings of fact made by the State appellate court may turn out to contradict
the clear and convincing evidence present in the entire State-court record” (emphasis added).
No. 04-6373               Clark v. Waller                                                                      Page 5


         (2) the petitioner does not quarrel with that summary and instead contends only that
         the trier of fact should have reached a different conclusion.
Small v. Endicott, 998 F.2d 411, 414 (7th Cir. 1993) (citing Davis, 671 F.2d at 1057). Given that
this court has rejected a rule requiring review of the transcript in all habeas cases, Nash, 437 F.3d
at 525, the conditions announced in Small offer an appropriate standard, consistent with Loveday
and its reasoning, for determining when such review is necessary. Under such a standard, it was not
necessary here. Accordingly, the district court did not err in failing to review the transcripts of the
state proceedings before summarily dismissing Clark’s petition.
                                                          III
        Clark contends that, even without recourse to the full state court transcript, the district court
erred in dismissing his ineffective assistance claims. He argues that the state court was incorrect in
its determination that the testimony of the2two uncalled witnesses—Lockett and Wafford—would
not have affected the outcome of his trial. In addition, he claims that his post-conviction counsel
was constitutionally ineffective for failing to raise the ineffectiveness of his trial counsel with
respect to Wafford, in order to excuse his procedural default of that claim in state proceedings,  under
the cause and prejudice analysis of Coleman v. Thompson, 501 U.S. 722 (1991).3
                                                          A
         The Tennessee Court of Criminal Appeals considered Clark’s claim of ineffective assistance
at trial waived with respect to counsel’s failure to call Jack Wafford, because Clark failed to raise
the allegation in his post-conviction petitions or at the evidentiary hearing. 2002 WL 1841630 at
*7. Clark does not dispute that he defaulted this claim, and in order to excuse the default, he must
show both cause for it and prejudice resulting from it. Coleman, 501 U.S. at 750. Clark offers his
post-conviction counsel’s ineffectiveness as cause. The state responds that, because there is no
general constitutional right to effective counsel in state collateral proceedings, id. at 755 (citing
Pennsylvania v. Finley, 481 U.S. 551 (1990)), and because “counsel’s ineffectiveness will constitute
cause only if it is an independent constitutional violation,” ibid., the representation by Clark’s post-
conviction counsel can not serve as cause for a default.
        In fact, Coleman specifically left open the question of whether there might be an exception
to the Finley rule “in those cases where state collateral review is the first place a prisoner can present
a challenge . . . ,” ibid. Tennessee disfavors ineffective assistance claims on initial direct appeal of
right (where Clark would have had a right to effective counsel, Douglas v. California, 372 U.S. 353
(1963)), considering their fact-intensive nature to be more appropriate to post-conviction
proceedings. See, e.g., State v. Carruthers, 35 S.W.3d 516, 551 (Tenn. 2000). But while Coleman
itself does not exclude the possibility of ineffective post-trial counsel serving as a cause for a
procedural default of a trial-ineffectiveness claim under these circumstances, this court’s application
of it appears to do so. See Abdus-Samad v. Bell, 420 F.3d 614, 632 (6th Cir. 2005); Gulertekin v.
Tinnelman-Cooper, 340 F.3d 415, 425 (6th Cir. 2003).


         2
           Clark suggests that the state court’s putative error was primarily an unreasonable determination of the facts
under 28 U.S.C. §2254(d)(2), but his argument appears better characterized as a claim of unreasonable application of
clearly established law (particularly the ineffective assistance standards of Strickland v. Washington, 466 U.S. 668
(1984)) under 28 U.S.C. § 2254(d)(1).
         3
           Despite some inconsistency in the phrasing of his argument, Clark does not appear to assert ineffective post-
conviction counsel as itself a ground for habeas relief, which would be clearly barred by 28 U.S.C. § 2254(i) (“The
ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be
a ground for relief in a proceeding arising under section 2254.”).
No. 04-6373            Clark v. Waller                                                             Page 6


        Furthermore, Clark is clearly unable to demonstrate actual prejudice from his procedural
default, the second element required under Coleman to excuse it. Insofar as the effect of the default
was to bar his claim of ineffective assistance with respect to Wafford, it could only have resulted
in actual prejudice if that underlying claim were itself meritorious. It is not. To prevail on the
underlying claim, Clark would in turn have to prove not only that his trial counsel’s performance
was constitutionally deficient in failing to put Wafford on the stand, but that this failure in turn
resulted in prejudice. Strickland, 466 U.S. at 694 (“defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have been
different.”)
         Whether or not Clark’s allegation—that trial counsel declined to call Wafford to cover up
his own failure to comply with disclosure requirements—might amount to deficient performance,
Clark has offered no reason to suggest any probability that, had Wafford testified, the outcome of
his trial would have been different. Indeed, he has offered no evidence, beyond his assertions, to
prove what the content of Wafford’s testimony would have been; a fortiori, he cannot show that he
was prejudiced by its omission. See Stewart v Wolfenbarger, 468 F.3d 338, 353 (6th Cir. 2006).
And even accepting Clark’s assertion as to Wafford’s testimony, he offers no basis to conclude that,
in light of the other evidence presented at trial, it would likely have altered the outcome. Unable to
prove prejudice resulting from the failure to call Wafford, Clark could not prevail on this
ineffectiveness claim whatever the deficiency of his attorney in choosing that course of action.
Strickland, 466 U.S. at 697 (“a court need not determine whether counsel's performance was
deficient before examining the prejudice suffered”). And because he could not prevail on that claim,
he could not have been prejudiced by procedurally defaulting it; the default, accordingly, is not
excused.
                                                    B
        In addition to this defaulted claim, Clark properly raised a similar claim with respect to his
trial counsel’s failure to call or obtain the testimony of Felix Lockett. This claim is equally without
merit. Indeed, his argument is nothing more than the assertion, based on the content of the purported
affidavit he unsuccessfully sought to introduce in the state post-conviction proceedings, that “Felix
Lockett’s testimony clearly would have aided [his] defense”—a claim considerably weaker than a
demonstration of a likelihood of a different outcome at trial. He provides no basis on which to
conclude that failure to call a possibly favorable witness amounts to constitutionally deficient
performance, where evidence supported the conclusion that counsel had investigated and made a
strategic choice. See Strickland, 466 U.S. at 690 (“[s]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually unchallengeable”). He
offers no reason to believe that the state court’s refusal to consider the purported affidavit was
incorrect. See Stewart, 468 F.3d at 353        (state court need not consider inadmissible evidence in
deciding ineffective assistance claim).4 And, even accepting arguendo the purported affidavit as
reflecting Lockett’s likely testimony, in light of the other evidence presented at trial this does not,
standing alone, provide a basis for concluding that the outcome likely would have been different.
Clark contends that his counsel’s attempts to secure Lockett’s testimony were not as thorough as the
state court concluded they were (though, as discussed above, he offers nothing more than
speculation to that effect), but even if he could demonstrate that his counsel’s performance were
constitutionally deficient, here, as in the case of Wafford, he has offered no demonstration of
prejudice. Accordingly, he has not made out a claim of ineffective assistance of counsel here.




        4
          Tennessee Supreme Court Rule 28, §3(A) explicitly makes the Tennessee Rules of Evidence generally
applicable in post-conviction proceedings, and the Rules appear to make no exception that would apply here.
No. 04-6373        Clark v. Waller                                                       Page 7


                                             IV
      For the foregoing reasons, the district court’s denial of Clark’s petition is AFFIRMED.
