                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 19a0130p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT



 PERLEY WINKLER,                                        ┐
                                Petitioner-Appellant,   │
                                                        │
                                                         >      No. 18-5301
       v.                                               │
                                                        │
                                                        │
 MIKE PARRIS, Warden,                                   │
                               Respondent-Appellee.     │
                                                        ┘

                          Appeal from the United States District Court
                       for the Eastern District of Tennessee at Knoxville.
                   No. 3:14-cv-00509—Pamela Lynn Reeves, District Judge.

                                    Argued: May 8, 2019

                              Decided and Filed: June 18, 2019

            Before: SUHRHEINRICH, THAPAR, and LARSEN, Circuit Judges.

                                     _________________

                                         COUNSEL

ARGUED: Jennifer L. Dollard-Smith, SQUIRE PATTON BOGGS (US) LLP, Cincinnati,
Ohio, for Appellant. T. Austin Watkins, OFFICE OF THE ATTORNEY GENERAL, Nashville,
Tennessee, for Appellee. ON BRIEF: Lauren S. Kuley, Colter L. Paulson, SQUIRE PATTON
BOGGS (US) LLP, Cincinnati, Ohio, Nathan L. Colvin, VORYS, SATER, SEYMOUR, AND
PEASE LLP, Cincinnati, Ohio, for Appellant. T. Austin Watkins, OFFICE OF THE
ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.
                                     _________________

                                          OPINION
                                     _________________

      SUHRHEINRICH, Circuit Judge. Perley Winkler, Jr. was convicted in Tennessee state
court of two counts of attempted first-degree murder and one count of attempted aggravated
 No. 18-5301                              Winkler v. Parris                                  Page 2


arson. He now petitions for habeas relief, alleging his appellate counsel was constitutionally
ineffective for failing to submit a small portion of his trial court record on appeal. He asserts that
under Entsminger v. Iowa, 386 U.S. 748 (1967), the failure to file a portion of the record entitles
him to presumed prejudice in the ineffective-assistance analysis. We reject Winkler’s argument,
AFFIRM the district court, and DENY the habeas petition.

                                             I. FACTS

       The prosecution’s case against Winkler primarily was based on the testimony of two
witnesses: John Senn, and his girlfriend (now wife) Sherri Turpin Senn. John Senn testified that
on the morning of April 17, 2007, one of his pit bull dogs woke him up. As he got up to let the
dog outside, he looked out the small window in his back door and saw Winkler and Michael
Aaron Jenkins in his yard. Senn testified that Jenkins was holding a gasoline jug, but that he
dropped it and ran into the woods with Winkler. Senn testified that he woke up Sherri and told
her to call the police. Senn testified that, in the meantime, he grabbed his gun, walked onto the
back porch, and fired eight shots into the woods. As he walked outside, Senn smelled gasoline
and saw that it had been poured in his jacuzzi, on his back porch, on the side of his house, and on
both of his cars.

       Sherri Turpin Senn corroborated most of John Senn’s story. She also testified that her
brother, Steve Abercrombie, had been in a long-running feud with Winkler, and that Mr.
Abercrombie lived approximately 100 yards from her house. She testified that, one week before
the incident, her sister-in-law, Lisa Abercrombie, played for her a voicemail message that
Winkler had left on Mrs. Abercrombie’s cellular telephone. According to Sherri Turpin Senn,
Winkler said, “You are going to die, you are going to burn.” She explained that she grew up
with Winkler and had heard his voice “thousands” of times, so she recognized it on the
voicemail.

       Relevant to this appeal, Winkler raised two evidentiary objections during trial. First,
Winkler wanted to impeach John Senn with his previous felony conviction for reckless
endangerment. The trial judge kept the conviction out, finding that it was more than ten years
old and had little probative value. Second, Winkler objected to Sherri Turpin Senn’s testimony
 No. 18-5301                                     Winkler v. Parris                                           Page 3


about the voicemail as inadmissible character evidence. The trial judge overruled Winkler’s
objection (and a best-evidence objection from co-defendant’s counsel) and allowed Sherri Turpin
Senn to testify about what she heard on the voicemail.

         The jury convicted Winkler of two counts of attempted first-degree murder and one count
of attempted aggravated arson. After an unsuccessful motion for a new trial on the evidentiary
issues, Winkler appealed. His counsel filed nearly the entire trial court record—except for the
transcript of his motion for a new trial. Without it, the Tennessee Court of Criminal Appeals
(TCCA) reviewed the evidentiary issues for plain error, found none, and affirmed Winkler’s
conviction.1 State v. Michael Aaron Jenkins and Perley Winkler, Jr., No. E2008–02321–CCA–
R3–CD, 2011 WL 578593, at *6 (Tenn. Crim. App., Feb. 17, 2011), appeal denied (Tenn. May
25, 2011).

         The TCCA also denied Winkler’s petition for post-conviction relief, stating “[t]he fact
that trial counsel failed to prepare an adequate appellate record does not, standing alone, amount
to ineffective assistance of counsel.” Winkler v. State, No. E2012-02647-CCA-R3PC, 2014 WL
545479, at *9 (Tenn. Crim. App. Feb. 10, 2014), appeal denied (Tenn. July 16, 2014). Instead,
the TCCA concluded that Winkler must show what was left out of the record, and how he was
prejudiced by the omission. Id.

         Winkler now petitions for habeas relief, arguing that he was not required to prove actual
prejudice under Entsminger.            Therefore, according to Winkler, the TCCA’s decision was
contrary to clearly established Supreme Court precedent. Alternatively, Winkler says he can
show actual prejudice. The district court denied Winkler’s petition but granted him a certificate
of appealability.
                                       II. STANDARD OF REVIEW

         After a state court has adjudicated a claim on the merits, a federal court may only issue a
writ of habeas corpus in two instances: (1) if the state court’s decision was “contrary to, or

         1The  Tennessee Rules of Appellate procedure require that a party seeking review of the admission or
exclusion of evidence in a case tried by a jury must first make a motion for a new trial on those grounds. Tenn. R.
App. P. 3(e). If a party does not move for a new trial before appeal, the issue will be treated as waived, id., and can
only be reviewed for plain error, Tenn. R. App. P. 36(b).
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involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States;” or (2) the “decision . . . was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d)(1)–(2). For the “clearly established” route, we may only consider holdings—
and not dicta—of the Supreme Court, Woods v. Donald, 135 S. Ct. 1372, 1376 (2015), and only
holdings that were precedent when the state court adjudicated the issue, Greene v. Fisher, 565
U.S. 34, 38 (2011). We review the district court’s legal habeas corpus decisions de novo and its
factual findings for clear error. Hand v. Houk, 871 F.3d 390, 406 (6th Cir. 2017).

                                         III. ANALYSIS

       The Supreme Court has held that the right to effective assistance of counsel extends to
appeals. Smith v. Robbins, 528 U.S. 259, 276–77, 285 (2000); Evitts v. Lucey, 469 U.S. 387,
396–405 (1985).      A petitioner claiming ineffective assistance of counsel must show that
counsel’s performance was deficient, and that the petitioner was prejudiced as a result.
Strickland v. Washington, 466 U.S. 668, 687 (1984). This “is never an easy task.” Padilla v.
Kentucky, 559 U.S. 356, 371 (2010). “[S]o long as fairminded jurists could disagree on the
correctness of [the state court’s] decision”—even if it was ultimately incorrect—we must deny
the petition. Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks and
citation omitted).

       Winkler and the State agree that trial counsel’s failure to file the transcript from the
motion for a new trial was deficient performance. See also Moore v. Carlton, 74 F.3d 689, 693
(6th Cir. 1996) (“[I]t seems clear that failing to file a significant portion of the record on direct
appeal constitutes deficient performance.”). Therefore, we consider only whether Winkler was
prejudiced as a result.

       Presumed Prejudice.       In certain cases, counsel is so ineffective that prejudice is
presumed. See Garza v. Idaho, 139 S. Ct. 738, 744 (2019). On appeal, “[t]he lodestar that
guides courts to presume prejudice is whether the attorney’s actions effectively ‘deprived [the
defendant] of the appellate proceeding altogether.’” Carter v. Parris, 910 F.3d 835, 842 (6th
Cir. 2018) (alteration in original) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000)). The
 No. 18-5301                                     Winkler v. Parris                                          Page 5


Supreme Court has presumed prejudice on appeal only in a limited number of situations:
(1) when a defendant is denied appellate counsel, Flores-Ortega, 528 U.S. at 483; and (2) when
appellate counsel fails to file a notice of appeal, Garza, 139 S. Ct. at 750. The Sixth Circuit has,
similarly, presumed prejudice when appellate counsel fails to file an appellate brief.                           See
Hardaway v. Robinson, 655 F.3d 445, 449 (6th Cir. 2011). The common theme among these
cases is that the defendant lost the ability to appeal altogether.

         Winkler purports to identify an additional presumed-prejudice scenario. He asserts that
the Supreme Court’s decision in Entsminger v. Iowa, 386 U.S. 748 (1967), sets a bright-line rule
that prejudice is presumed whenever an attorney fails to file a portion of the trial court record on
appeal. We do not read Entsminger so broadly.

         In Entsminger, appointed counsel, believing that an appeal would have no merit, did not
file the entire record. 386 U.S. at 750. Instead, he filed only the clerk’s transcript (essentially a
docket sheet), which did not contain a transcript of the evidence, the briefs, or the argument of
counsel. Id. at 749. The Iowa Supreme Court affirmed the defendant’s conviction despite
defendant’s request for the full record. Id. at 750. The Supreme Court reversed, stating that
“there is no question but that [defendant] was precluded from obtaining a complete and effective
appellate review of his conviction by the operation of the clerk’s transcript.” Id. at 752. The
Court then remanded the case for consideration with the full record. Id.

         Thus, in Entsminger, the defendant lost “all hope of any (adequate and effective) appeal”
because the attorney chose not to file the entire record and the state appellate court refused to
order it despite the defendant’s request. Id. (citation and internal quotation marks omitted).
Enstminger predates Strickland’s deficient performance and prejudice framework, but its
reasoning suggests that prejudice is presumed when the defendant is entirely prevented from
presenting the trial court record to the appellate court.2 But that is not what happened here.


         2
          Another pre-Strickland case, Hardy v. United States, 375 U.S. 277 (1964), shows what happens when
appellate counsel cannot access the full trial transcript. There, an indigent defendant filed a pro se application for
leave to appeal. Id. at 278. The court of appeals ordered only the parts of the transcript referenced in the
defendant’s conclusory allegations on appeal. Id. Pro bono counsel, appointed after defendant filed his application,
filed a motion with the court of appeals requesting the entire transcript. Id. The court of appeals denied the motion.
Id. The Supreme Court reversed, concluding that “counsel’s duty cannot be discharged unless he has a transcript of
 No. 18-5301                                 Winkler v. Parris                                      Page 6


        Winkler’s counsel filed a notice of appeal. He wrote two briefs. He submitted a record
of over 800 pages, including the trial transcripts and exhibits, and failed to submit only the
transcript (about six pages) from the post-trial hearing on Winkler’s motion for a new trial. The
TCCA then reviewed his conviction for sufficiency of the evidence. Thus, Winkler was not, by a
long shot, “deprived . . . of the appellate proceeding altogether.” Flores-Ortega, 528 U.S. 483.
Two post-Strickland Sixth Circuit cases lend support to this conclusion.

        In Moore v. Carlton, the petitioner sought a writ of habeas corpus based on his appellate
counsel’s failure to file a complete trial transcript. 74 F.3d at 690. Both the TCCA and the
district court rejected petitioner’s ineffective assistance of counsel claims because he could not
show prejudice. Id. We affirmed. Id. at 694. Using the two-part Strickland analysis, we held:
“[I]t seems clear that failing to file a significant portion of the record on direct appeal constitutes
deficient performance, when the sufficiency of the evidence is an issue.” Id. at 692–93 (citing
Entsminger, 386 U.S. at 750–51). “However,” we continued, “the prejudice prong of this claim
must also be hurdled.” Id. at 693. We concluded that “ample evidence” supported petitioner’s
conviction and that there was “not even a modicum of evidence here that the incomplete
transcript resulted in actual prejudice.” Id.

        Similarly, in Bransford v. Brown, the petitioner raised due process and ineffective
assistance claims when his appellate counsel failed to obtain the transcripts of the jury
instructions. 806 F.2d 83, 84 (6th Cir. 1986). But appellate counsel did so based upon his
conversations with trial counsel. Id. at 83–84. We held that where “[petitioner’s] trial attorney
communicated with his appellate attorney, the absence of the jury instruction transcripts is not a
per se denial of his due process rights to a fair appeal. Instead, in order to demonstrate denial of
a fair appeal, petitioner must show prejudice resulting from the missing transcripts.” Id. at 86
(citations omitted). Likewise, applying Strickland, we held that although appellate counsel’s
performance was deficient due to his failure to secure the transcript of the jury instructions, there
was no prejudice because appellate counsel “did review the bulk of the trial proceedings and
perfected an appeal on behalf of petitioner, which appeal was heard on the merits.” Id. at 87.


the testimony and evidence presented by the defendant and also the court’s charge to the jury, as well as the
testimony and evidence presented by the prosecution.” Id. at 282.
 No. 18-5301                              Winkler v. Parris                                  Page 7


We “recognize[d] the difficulties inherent in an attempt to prove prejudice when no record exists
of the proceedings at issue,” but nonetheless concluded that “petitioner must present us with
something more than rank speculation.” Id.

       In short, based on clear precedent, a presumption of prejudice arises only when the
petitioner is effectively prevented from presenting any part of the trial court record on appeal
because counsel fails to file it and the court fails to obtain it. In all other ineffective assistance
cases regarding the trial court record on appeal, a petitioner must show actual prejudice. Here,
Winkler’s counsel filed a significant portion of the trial court record on appeal. Therefore,
Winkler is not entitled to presumed prejudice. Instead, he must show actual prejudice resulting
from his counsel’s deficient performance.

       Actual Prejudice. To do that, Winkler must show that “there is a reasonable probability
that inclusion of the [evidentiary] issue[s] would have changed the result of the appeal.”
McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004). “The likelihood of a different result
must be substantial, not just conceivable.” Harrington, 562 U.S. at 112 (citation omitted). We
consider each piece of evidence in turn and “decide whether there is a reasonable probability that
the claim would have prevailed at the time counsel failed to raise it.” McFarland, 356 F.3d at
699.

       The stale conviction. Winkler asserts that there is a reasonable probability that the TCCA
would have reversed the trial judge’s decision to omit any reference to John Senn’s stale felony
conviction for reckless endangerment. We disagree. The TCCA would have reviewed the trial
judge’s decision for an abuse of discretion. State v. Waller, 118 S.W.3d 368, 371 (Tenn. 2003).
In Tennessee, a party may only present evidence of a witness’s prior conviction to attack the
witness’s credibility if that conviction was for a felony or if the crime “involved dishonesty or
false statement.” Tenn. R. Evid. 609(a)(2). Although Senn’s conviction was a felony, it was
more than ten years old. Therefore, it was only admissible if its probative value substantially
outweighed its prejudicial effect. Tenn. R. Evid. 609(b).

       Winkler asserts that the conviction was probative because, as a felon, Senn could not own
or discharge a firearm. Thus, Senn could have been prosecuted for firing the gun, so he had to
 No. 18-5301                             Winkler v. Parris                                 Page 8


“invent a reason to justify his gunplay to the police.” The trial judge determined the conviction
had little probative value and that Winkler’s reasoning for offering it was collateral to the
question at trial—i.e., whether Winkler attempted to burn down Senn’s house. The trial judge’s
reasoning is sound, and we do not see any substantial likelihood that the TCCA would have
determined that the trial judge abused her discretion.

       The voicemail. Winkler also asserts that the there is a reasonable probability that the
TCCA would have reversed the trial judge’s decision to let Sherri Turpin Senn testify that she
heard Winkler say, “You are going to die, you are going to burn,” in a voicemail. Again, we
disagree.

       Winker first attempts to characterize the voicemail statement as inadmissible character
evidence. See Tenn. R. Evid. 404(b). In Winkler’s view, his voicemail to Lisa Abercrombie was
a prior bad act that the State used to show that he was an arsonist, and that he was acting in
conformity with that trait when he poured gasoline on the Senns’ house. However, the voicemail
was evidence that Winkler threatened direct harm against Sherri Turpin Senn. She and Lisa
Abercrombie were sisters-in-law, their houses were only 100 yards apart, and Winkler was
engaged in a long-running feud with her entire family. Threats of direct harm are not barred by
Rule 404(b) because they “show [the] defendant’s hostility toward the victim, malice, intent, and
a settled purpose to harm the victim.” State v. Smith, 868 S.W.2d 561, 574 (Tenn. 1993); see
also State v. Bias, No. E2007-01452-CCA-R3-CD, 2009 WL 3817291, at *15 (Tenn. Crim. App.
Nov. 16, 2009) (holding trial court properly admitted threat “if you call the law I will come back
and kill you and burn your house”).

       Winkler also asserts that Sherri Turpin Senn’s testimony about the voicemail is not the
best evidence of the voicemail.       We note, however, that the best evidence rule is one of
preference, and the original recording is not required if it has been lost, destroyed, or is
unobtainable. Tenn. R. Evid. 1004(1)–(2). On post-conviction review, Lisa Abercrombie (to
whom the voicemail was originally sent) and Andrew Freiberg (the prosecutor) testified that the
voicemail no longer existed at the time of Winkler’s trial. Absent the original recording, the best
evidence rule is inapplicable.
 No. 18-5301                           Winkler v. Parris                               Page 9


                                     IV. CONCLUSION

       Prejudice is presumed only in limited instances on appeal. The failure to file a small
portion of a trial court record is not one of them. Therefore, the TCCA’s decision to deny
Winkler’s ineffective-assistance claim was neither contrary to, nor an unreasonable application
of, clearly-established Supreme Court precedent.

       We AFFIRM the district court and DENY Winkler’s petition.
