                                 RECOMMENDED FOR PUBLICATION
                                 Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                        File Name: 20a0199p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT



 STEPHEN HUGUELEY,                                            ┐
                                  Petitioner-Appellant,       │
                                                              │
                                                               >        No. 17-6024
        v.                                                    │
                                                              │
                                                              │
 TONY MAYS, Warden,                                           │
                                 Respondent-Appellee.         │
                                                              ┘

                         Appeal from the United States District Court
                       for the Western District of Tennessee at Jackson.
                      No. 1:09-cv-01181—J. Daniel Breen, District Judge.

                                 Decided and Filed: July 1, 2020

                Before: BOGGS, GRIFFIN, and KETHLEDGE, Circuit Judges.

                                       _________________

                                             COUNSEL

ON BRIEF: Amy D. Harwell, Dee R. Goolsby, OFFICE OF THE FEDERAL PUBLIC
DEFENDER FOR THE MIDDLE DISTRICT OF TENNESSEE, Nashville, Tennessee, for
Appellant. Richard D. Douglas, OFFICE OF THE TENNESSEE ATTORNEY GENERAL,
Nashville, Tennessee, for Appellee.
                                       _________________

                                              OPINION
                                       _________________

       BOGGS, Circuit Judge. Stephen Lynn Hugueley, a death-row inmate at Tennessee’s
Riverbend Maximum Security Institution, appeals the denial of his 28 U.S.C. § 2254 habeas
petition, which alleged various violations of his constitutional rights. We granted a certificate of
appealability on only one issue, whether Hugueley’s counsel at trial was ineffective. In the
 No. 17-6024                            Hugueley v. Mays                                 Page 2


proceedings below, the federal habeas court concluded that this claim had been procedurally
defaulted. Hugueley originally raised the claim in his state post-conviction proceedings, but he
waived the claim when he decided to voluntarily withdraw his petition. Hugueley now argues
that he should have been declared incompetent to withdraw his post-conviction petition, and that
the state-court procedures that determined that he was competent were procedurally deficient
under Panetti v. Quarterman, 551 U.S. 930 (2007). He therefore contends that the court’s ruling
of procedural default was incorrect. In the alternative, he argues that his default should be
excused under Martinez v. Ryan, 566 U.S. 1 (2012), because his state post-conviction counsel
was ineffective, and her deficient performance caused his default.

       For the following reasons, we reject Hugueley’s arguments and affirm the district court’s
denial of his habeas petition.

                                 I. FACTUAL BACKGROUND

       In 2003, Stephen Hugueley was convicted and sentenced to death for the January 17,
2002 killing of correctional counselor Delbert Steed at Tennessee’s Hardeman County
Correctional Facility. On the day of the murder, Hugueley, an inmate at the facility at the time,
approached Steed from behind as he was sitting a table and began stabbing Steed with a
homemade weapon fashioned out of a sharpened metal rod attached to a marker. Hugueley
stabbed Steed thirty-six times and stopped only after the handle of his weapon broke off. Steed
was carried out of the room with the sharpened portion of the weapon still embedded in him, and
he died shortly thereafter. At trial, Hugueley testified that he had planned the attack on Steed
because the victim “had a smart ass mouth,” which was a “problem.” State v. Hugueley,
185 S.W.3d 356, 366 (Tenn. 2006) (“Hugueley I”).          Hugueley also admitted that had his
homemade weapon not broken, he would have kept stabbing Steed, and that it was his intention
to drive the weapon “plumb through and hit the concrete below him.” Id. at 365.

       The jury convicted Hugueley of first-degree murder.           Hugueley then waived the
presentation of any mitigating evidence during the penalty phase of the trial. However, the jury
still considered several potential aggravating factors. In 1986, Hugueley was convicted of first-
degree murder for killing his mother. In 1992, he was convicted again of first-degree murder
 No. 17-6024                                     Hugueley v. Mays                                             Page 3


after killing a fellow inmate, James Shelton. In 1998, Hugueley was convicted of attempted
first-degree murder after stabbing another inmate, Timerall Nelson.                           The jury sentenced
Hugueley to death based on four aggravating factors: (1) he had several prior convictions for
violent felonies; (2) the murder was especially heinous, atrocious, or cruel; (3) the murder was
committed in a place of lawful confinement; and (4) the victim of the murder was a corrections
employee. See Tenn. Code Ann. § 39-13-204(i)(2), (5), (8), (9); Hugueley I, 185 S.W.3d at 363.
Following his conviction, Hugueley expressed a desire to waive his direct appeal, but since
Tennessee law requires an automatic appeal from a death sentence, his direct appeal was heard
by the Tennessee Court of Criminal Appeals and then by the Tennessee Supreme Court. Both
courts affirmed his conviction and death sentence. State v. Hugueley, No. W2004-00057-CCA-
R3-CD, 2005 WL 645179 (Tenn. Crim. App. Mar. 17, 2005); Hugueley I, 185 S.W.3d at 387.

                                   II. PROCEDURAL BACKGROUND

                                    A. State Post-Conviction Proceedings

         On July 24, 2006, Hugueley filed a pro se petition for post-conviction relief as well as a
pro se motion requesting that post-conviction counsel be appointed for him. Although the court
appointed counsel to represent him, Hugueley later objected to the representation, and—in
November 2006—notified the court that he wished to withdraw the petition. In January of 2007,
Hugueley’s appointed counsel, Kelly Gleason, filed an amended petition for post-conviction
relief, which detailed thirty-one possible claims for relief, including a claim that Hugueley’s trial
counsel was ineffective for failing to request a competency hearing before trial and for
permitting Hugueley to waive the presentation of mitigating evidence.

         In a June 22, 2007 letter to the court, Hugueley reiterated his request to withdraw his
post-conviction petition.1         But at an August 2007 hearing, Gleason raised concerns about
Hugueley’s competency to withdraw his petition. In support, she provided the court with several


         1In a series of letters sent to the court in the summer of 2007, Hugueley expressed that he had only filed his
post-conviction petition to “stall” his execution because he learned that he might not be able to receive visitors while
on “death watch”—a three-day period of increased supervision and security before an inmate’s scheduled execution.
He stated that he “had no intention of pursuing post-conviction until the end” and that after his visitation issues were
resolved, he wished to withdraw his petition.
 No. 17-6024                            Hugueley v. Mays                                 Page 4


pieces of evidence that had been developed for Hugueley’s trial, including a notebook detailing
Hugueley’s history of mental illness, and a social history and mitigation report that had been
prepared for but—by Hugueley’s choice—not submitted at trial. Gleason also submitted recent
affidavits from two doctors who had evaluated Hugueley prior to trial. Although both doctors
had originally declared him competent to stand trial, they both expressed the view that further
evaluation of Hugueley’s competency was warranted. Furthermore, Gleason filed motions for
additional expert assistance, requesting funding for a neuropsychological expert, a
psychopharmacology expert, and a psychiatrist. She also filed a motion requesting that funds be
provided for a variety of brain-imaging scans. The court denied these requests.

       However, after concluding that there was a genuine issue as to Hugueley’s competency,
the court directed Gleason and the state to each submit a list of mental-health experts who could
evaluate Hugueley. On January 23, 2008, the court appointed Dr. John Hutson, an expert
suggested by the state, and Dr. Peter Brown, an expert suggested by Gleason, for the evaluation.
The court set a deadline of March 6, 2008 for their reports to be submitted. However, in a July
24, 2008 order, the court noted that Dr. Brown, after having received several extensions, had yet
to evaluate Hugueley. The court also noted that Dr. Hutson had been mistakenly paid with funds
from the Tennessee District Attorney General’s Conference rather than with court funds; and
although there were no indications of impropriety, the court concluded that it could not rely on
Dr. Hutson’s findings. The court thus disqualified both Dr. Brown and Dr. Hutson and directed
the parties to submit a second list of experts who could evaluate Hugueley by August 25, 2008.

       Tennessee submitted a new list of experts. Gleason also submitted a list of experts but
noted that none of them would be able to complete the evaluation within the court’s proposed
timeframe. She requested additional time and funding to continue her search, or an extended
timeframe within which the evaluation could be completed. However, the court stated that it was
concerned with avoiding further delay and appointed Dr. Bruce Seidner, one of the state’s
recommended experts, on August 1, 2008. After evaluating Hugueley, Dr. Seidner concluded
that he was competent to waive post-conviction review. Approximately two weeks before a
November 14, 2008 competency hearing, Gleason filed a renewed motion for expert assistance,
again requesting funding for brain-imaging scans and expert evaluations from three doctors.
 No. 17-6024                             Hugueley v. Mays                                   Page 5


The court again denied the motion. The court then held an evidentiary hearing where Dr. Seidner
testified and was cross-examined. After the hearing, Hugueley was given the opportunity to
present additional evidence regarding his competency, and Gleason supplemented the record
with a report that questioned the adequacy and reliability of Dr. Seidner’s evaluation. On
January 8, 2009, the court concluded that Hugueley was competent and granted his request to
withdraw his post-conviction petition.

       Although Hugueley had made the decision to voluntarily withdraw his post-conviction
petition, he nonetheless appealed the post-conviction court’s decision to the Tennessee Court of
Criminal Appeals. While his appeal was pending, Hugueley also filed an affidavit in that court
stating that he wished to revoke the withdrawal of his petition and to resume proceedings.
However, the Tennessee Court of Criminal Appeals noted that the affidavit—filed on August 10,
2009—was filed more than eight months after the withdrawal was granted, after the requisite
thirty-day period necessary for a Tennessee court to reinstate the post-conviction petition. See
Pike v. State, 164 S.W.3d 257, 267 (Tenn. 2005). It therefore affirmed the trial court’s decision.
Hugueley v. State, No. W2009-00271-CCA-R3-PD, 2011 WL 2361824 (Tenn. Crim. App. June
8, 2011) (“Hugueley II”).
                                 B. Federal Habeas Proceedings

       In 2009, Hugueley filed a 28 U.S.C. § 2254 habeas petition in federal court, which forms
the basis of this appeal. In the petition, he raised twelve separate claims for relief, all of which
the district court rejected. We ultimately granted Hugueley a certificate of appealability on one
issue: whether Hugueley’s trial counsel was ineffective. The district court had rejected this claim
because it concluded that Hugueley had procedurally defaulted it by withdrawing his state post-
conviction petition. See Hugueley v. Westbrooks, 2017 WL 3325008, at *67 (W.D. Tenn. Aug. 3,
2017) (“Hugueley III”).

       The gist of Hugueley’s claim is that his trial counsel failed to adequately develop
evidence of his alleged incompetency, which resulted in him improperly standing trial and
receiving the death penalty. Both experts who examined Hugueley before trial had concluded
that while he had suffered from a long history of psychiatric disorders, he could still understand
the nature of judicial proceedings and was therefore competent to stand trial. However, in 2013,
 No. 17-6024                                    Hugueley v. Mays                                          Page 6


as part of his federal habeas proceedings, Hugueley had MRI scans conducted on his brain.
Although Hugueley had CT scans taken in 2003, which did not reveal any abnormalities, two
new experts—Doctors George Woods and Siddhartha Nadkarni—concluded from the 2013 MRI
that Hugueley’s brain was not fully developed, suggesting that he is not able to correctly perceive
reality or respond rationally. Based on four separate examinations of Hugueley (in 2001, 2011,
2013, and 2014), the MRI scans, and documents from Hugueley’s prior evaluations, Dr. Woods
expressly concluded that Hugueley had been “incompetent to stand trial in his capital case.” Dr.
Nadkarni—who did not evaluate Hugueley but had access to the MRI scans and prior
evaluations—concluded that Hugueley currently did “not meet either the federal or state
competence standard.” Dr. Nadkarni did not offer an opinion as to Hugueley’s competence
during his 2003 trial.2

        Hugueley argues that these new evaluations demonstrate that his counsel at trial was
wholly ineffective for failing to fully develop evidence of his alleged incompetency. More
specifically, Hugueley separates his claim into two categories: (1) that his trial counsel was
ineffective for failing to fully investigate and litigate his competency to stand trial; and (2) that
his trial counsel was ineffective for failing to investigate his competency when he committed his
prior murders, each of which was an aggravating factor that resulted in his capital sentence. In
short, Hugueley asserts that had his trial lawyers conducted a full investigation into his
competency, there would have been a reasonable probability that either he would not have stood
trial, the jury would not have convicted him, or he would not have been sentenced to death.

        Tennessee responds by arguing that because Hugueley made a competent withdrawal of
his post-conviction petition, he never fully developed any of these claims before the Tennessee
courts and has procedurally defaulted them. See Tenn. Sup. Ct. R. 28; Coleman v. Thompson,
501 U.S. 722, 750 (1991) (“In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an independent and adequate state procedural rule, federal habeas

        2During  the pendency of Hugueley’s federal habeas proceedings, he also filed a petition for a writ of error
coram nobis in state court, arguing that the new mental-health conclusions by Doctors Nadkarni and Woods meant
that Hugueley was incompetent to stand trial and that he was incompetent to withdraw his state post-conviction
proceedings. The state trial court denied the petition as meritless, and the Tennessee Court of Criminal Appeals
affirmed. Hugueley v. State, No. W2016-01428-CCA-R3-ECN, 2017 WL 2805204 (Tenn. Crim. App. June 28,
2017).
 No. 17-6024                               Hugueley v. Mays                                 Page 7


review of the claims is barred unless the prisoner can demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of justice.”).

        Hugueley counters that his procedural default was invalid, or in the alternative, that it
should be excused.

                                     III. LEGAL OVERVIEW

        In reviewing the denial of a habeas petition, we review a district court’s legal
determinations and mixed questions of law and fact de novo while factual determinations are
reviewed for clear error. Moore v. Mitchell, 708 F.3d 760, 774 (6th Cir. 2013).

        Generally, “a federal court will not review the merits of claims, including constitutional
claims, that a state court declined to hear because the prisoner failed to abide by a state
procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9 (2012); see also Davila v. Davis, 137 S. Ct.
2058, 2062 (2017) (“Federal habeas courts reviewing convictions from state courts will not
consider claims that a state court refused to hear based on an adequate and independent state
procedural ground.”). This rule was “designed to ensure that state-court judgments are accorded
the finality and respect necessary to preserve the integrity of legal proceedings within our system
of federalism.” Martinez, 566 U.S. at 9.

        It is undisputed that Hugueley’s withdrawal of his state post-conviction petition resulted
in a failure to present his ineffective-assistance-of-trial-counsel claim for review on the merits by
the Tennessee courts. The federal habeas court in the current proceeding thus concluded that the
claim had been procedurally defaulted and dismissed it. Hugueley III, 2017 WL 3325008 at *67.
However, the doctrine of procedural default is not without exceptions. “A prisoner may obtain
federal review of a defaulted claim by showing cause for the default and prejudice from a
violation of federal law.” Martinez, 566 U.S. at 10. Additionally, “[i]nadequate assistance of
counsel at initial-review collateral proceedings may establish cause for a prisoner’s procedural
default of a claim of ineffective assistance at trial.” Id. at 9.
 No. 17-6024                           Hugueley v. Mays                                 Page 8


       On appeal, Hugueley argues his waiver of his claim was not a valid procedural default
and that, even if the default was valid, it should be excused. First, he contends that the state
court’s procedures in determining his competency to withdraw his post-conviction petition
violated due-process requirements because they failed to provide him with sufficient time or
resources to adequately demonstrate his incompetency, rendering the default of his claims
invalid. Second, he contends that even if the procedural default was valid, his post-conviction
counsel was ineffective, thereby creating cause and prejudice to excuse the default. For the
following reasons, we reject both arguments and affirm the district court’s denial of Hugueley’s
habeas petition.
                                      IV. DISCUSSION

      A. Process of State-Court Competency Determination under Panetti v. Quarterman

       Hugueley claims that his procedural default is invalid because the state post-conviction
court’s procedures in determining his competency to withdraw his petition violated due process.
In support, Hugueley relies on Panetti v. Quarterman, which held that once a death-row
petitioner who is alleging that he is too incompetent to be executed has made a substantial
showing of his incompetency, he is entitled to “an adequate means by which to submit expert
psychiatric evidence in response to the evidence that had been solicited by the state court.”
551 U.S. 930, 948 (2007).     In particular, the petitioner is entitled to a “fair hearing,” an
“opportunity to be heard,” and a “determination of sanity” that has not “been made solely on the
basis of the examinations performed by state-appointed psychiatrists.” Id. at 949 (citations
omitted).

       Hugueley argues that the post-conviction court’s actions in evaluating his competency did
not conform to these procedural requirements. He takes issue with the court’s refusal to grant
him additional time or funding to secure another expert after Dr. Brown was disqualified, which
he claims resulted in his inability to “make an adequate response to evidence solicited by the
state” and prevented him from submitting “psychiatric evidence as a counterweight to the report
filed by the court-appointed expert.” Id. at 952. He also objects to the court’s denial of his
request for funding to obtain brain scans, claiming that had the motion been granted, the scans
would have revealed—as he contends that his 2013 MRIs do now—that he was incompetent.
 No. 17-6024                                    Hugueley v. Mays                                          Page 9


        But Hugueley’s arguments are unavailing for several reasons.                           Panetti, and its
predecessor case, Ford v. Wainwright, 477 U.S. 399 (1986), each considered a death-row
petitioner’s claim that he would be ineligible for execution because of his incompetency, not a
claim that he was incompetent to waive state post-conviction review. This is a distinction with
constitutional implications. “The Eighth Amendment prohibits the State from inflicting the
penalty of death upon a prisoner who is insane.” Id. at 410; see also Thompson v. Bell, 580 F.3d
423, 435 (6th Cir. 2009) (noting that the Eighth Amendment requires “that a prisoner must be
able to understand the impending execution and the reason for it”). The procedural safeguards
mandated by Panetti and Ford ensure that a petitioner will not be executed if he cannot fully
understand the reasons behind his execution. Thus, we have held that if there is “a genuine issue
about [a petitioner’s] competency” to understand his execution, then an evidentiary hearing is
“warrant[ed].” Thompson, 580 F.3d at 436.

        A similar constitutional concern does not animate a claim that the petitioner is
incompetent to waive state post-conviction review.                  “State collateral proceedings are not
constitutionally required as an adjunct to the state criminal proceedings and serve a different and
more limited purpose than either the trial or appeal.” Murray v. Giarratano, 492 U.S. 1, 10
(1989) (plurality opinion); see also Lackawanna Cty. Dist. Att’y v. Coss, 532 U.S. 394, 402
(2001) (noting that each state has created procedures for post-conviction review, “even though
there is no constitutional mandate that they do so”). States are under “no obligation” to establish
procedures for evaluating collateral attacks on a conviction because post-conviction proceedings
are “not part of the criminal proceeding itself” but are instead “civil in nature.” Pennsylvania v.
Finley, 481 U.S. 551, 557 (1987). It therefore follows that states are under no obligation to
provide a petitioner with his preferred procedural framework when evaluating his competency to
withdraw his post-conviction review.3



        3This   conclusion does not preclude Hugueley from raising the issue of his competency to be executed at a
later time, because “[a] competency claim under Ford . . . does not become ripe until an execution date is set” and
“the limitation on second-or-successive habeas petitions does not apply, so long as the second-in-time petition is
filed as soon as it becomes ripe.” In re Campbell, 874 F.3d 454, 466 (6th Cir. 2017) (per curiam). However, it does
foreclose Hugueley’s argument that the state court’s dismissal of his post-conviction petition was not in accordance
with due process.
 No. 17-6024                             Hugueley v. Mays                                Page 10


       Importantly, even if Panetti did apply to Hugueley’s situation, there is no indication that
the post-conviction court failed to comply with its due-process requirements. Assuming that
Hugueley has made a substantial showing of his incompetence, due process required only that he
receive a fair hearing on the matter and an opportunity to be heard. See Panetti, 551 U.S. at 949;
Bedford v. Bobby, 645 F.3d 372, 380 (6th Cir. 2011) (per curiam). As noted earlier, the post-
conviction court held an evidentiary hearing to determine Hugueley’s competency, where Dr.
Seidner testified and was cross-examined. Indeed, the court noted that at the hearing, Dr.
Seidner’s conclusions and credentials were “vigorously challenged” and that he was “questioned
at length about his testing methodology.”       Hugueley also had the opportunity to submit
additional evidence after the hearing, and he supplemented the record with arguments for why
Dr. Seidner’s evaluation should not be relied upon.

       Nevertheless, Hugueley argues that the court relied only on the opinion of Dr. Seidner—
the expert recommended by the state—and thus contravened Panetti’s prohibition against
competency determinations “made solely on the basis of the examinations performed by state-
appointed psychiatrists.” Panetti, 551 U.S. at 949. However, when compared to the underlying
situation from Ford v. Wainwright that prompted this rule, Hugueley’s attempts to analogize fall
short. In Ford, the Supreme Court held that Florida’s procedure for evaluating the competency
of a condemned inmate violated due process. Under a state statute, the Governor of Florida
could appoint of a panel of three psychiatrists who would together evaluate the inmate at a single
meeting for thirty minutes. Ford, 477 U.S. at 403–04. Each doctor then filed a separate report
with the Governor, who would decide whether the execution would proceed by either signing or
refusing to sign the inmate’s death warrant. Id. at 404. The statute did not require a hearing of
any kind, any presentation of evidence from the prisoner, or any opportunity for the prisoner to
respond to the state-appointed psychiatrists’ conclusions. In short, there was no requirement that
the Governor “consider materials submitted by the prisoner,” thus depriving the prisoner of “an
opportunity to be heard.” Id. at 424 (Powell, J., concurring) (internal quotation marks and
citations omitted). The procedure therefore necessarily resulted in an evaluation of materials that
had only been prepared by the state.
 No. 17-6024                              Hugueley v. Mays                                Page 11


       In contrast to the situation in Ford, Hugueley was able to submit several pieces of
evidence for the post-conviction court’s consideration. He submitted his mental-health records,
and his social history and mitigation reports—which had been prepared for but were not
submitted at trial. He also submitted new affidavits from the two doctors who had examined him
previously. The court also provided Hugueley with ample opportunity to obtain an evaluation
from his preferred expert, Dr. Brown. Indeed, Dr. Brown was appointed in January of 2008 and
had over six months to evaluate Hugueley but had not even begun to do so by the time he was
disqualified. See Hugueley II, 2011 WL 2361824, at *26. Hugueley argues that it was the
court’s manner of setting short deadlines—requiring Hugueley’s counsel to request and receive
several extensions on Dr. Brown’s behalf—that prevented Dr. Brown from evaluating him. But
Dr. Hutson, the state’s preferred expert, was subject to the same procedures and was able to
finish his evaluation on time (although he was later disqualified for other reasons). Even after
Dr. Brown was disqualified, Hugueley was given an opportunity to secure another expert, but did
not do so. Put simply, Hugueley was not subject to a process that was unfair to him in any
material way. Any deficiency that ultimately resulted in Dr. Seidner being the only one to
evaluate Hugueley cannot be attributed to a due-process violation by the post-conviction court.
Nothing in Panetti and Ford adverts to the conclusion that a petitioner is entitled to the
procedure of his choice, or an expert of his choice in making the competency determination. As
such, we hold those cases cannot be a basis to invalidate Hugueley’s withdrawal of his post-
conviction petition.
                       B. Excuse of Procedural Default Under Martinez v. Ryan

       Hugueley argues, in the alternative, that even if the ruling of procedural default was valid,
his procedural default of his ineffective-assistance-of-trial-counsel claim should be excused. In
support, he claims that his post-conviction counsel was ineffective in developing evidence of his
alleged incompetency, thereby causing the court to make an incorrect determination that he was
able to voluntarily withdraw his post-conviction review.

       Hugueley’s argument relies on Martinez v. Ryan, which held that “a procedural default
will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at
trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that
 No. 17-6024                             Hugueley v. Mays                                Page 12


proceeding was ineffective.” 566 U.S. at 17. Although the situation in Martinez involved a state
procedural framework that required prisoners to raise an ineffective-assistance-of-trial-counsel
claim for the first time on collateral review, the Supreme Court has since clarified that this
exception also applies where a state’s “procedural framework, by reason of its design and
operation, makes it unlikely in a typical case that a defendant will have a meaningful opportunity
to raise a claim of ineffective assistance of trial counsel on direct appeal[.]” Trevino v. Thaler,
569 U.S. 413, 429 (2013). For all intents and purposes, Martinez created a very “narrow
exception,” to the procedural-default bar, Martinez, 566 U.S. at 9, and “treats ineffective
assistance by a prisoner’s state postconviction counsel as cause to overcome the default of a
single claim—ineffective assistance of trial counsel—in a single context—where the State
effectively requires a defendant to bring that claim in state postconviction proceedings rather
than on direct appeal.” Davila, 137 S. Ct. at 2062. We have held that because Tennessee courts
advise prisoners to file ineffective-assistance-of-trial-counsel claims for the first time in post-
conviction proceedings, defendants in the state are “highly unlikely to have a meaningful
opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal,” and thus
the Martinez exception applies in Tennessee. Sutton v. Carpenter, 745 F.3d 787, 792 (6th Cir.
2014).     However, to succeed on his claim, Hugueley must still demonstrate that the
ineffectiveness of his post-conviction counsel was the “cause” of his default, and that his
underlying ineffective-assistance-of-trial-counsel claim was “substantial.” Trevino, 569 U.S. at
423 (citing Martinez, 566 U.S. at 17).

         Hugueley argues that Gleason’s performance was deficient and was therefore the “cause”
of his default because she failed to take certain actions to develop evidence of his alleged
incompetency. In support, he notes that several of Gleason’s motions for expert assistance were
denied because she failed to abide by a Tennessee Supreme Court rule that required counsel to
make “every effort” to obtain experts located within 150 miles of the court. See Hugueley II,
2011     WL    2361824,   at   *22.      Each   of   Gleason’s    proposed    neuropsychological,
psychopharmacology, and psychiatric experts was located outside of the geographic boundaries
set out by the rule and so the post-conviction court denied funding for them. Hugueley also
objects to Gleason’s inability to secure funding for brain-imaging scans. Although Gleason
 No. 17-6024                              Hugueley v. Mays                                  Page 13


ultimately filed two motions requesting such funding (both of which were denied), Hugueley
suggests that Gleason should have pushed the issue further.

        We hold that Gleason’s performance was not a “cause” of Hugueley’s default because she
properly raised a claim of ineffective assistance of trial counsel in the state collateral
proceedings. Martinez and the cases that follow it indicate that the Supreme Court’s rationale in
creating the exception was the concern that deficient (or nonexistent) post-conviction counsel
would fail to ever raise a prisoner’s ineffective-assistance-of-trial-counsel claim, not a concern
that the claim would be raised but ultimately be underdeveloped.            Put another way, post-
conviction counsel’s failure to take all possible steps to fully develop a claim cannot be the
“cause” of a default as long as counsel properly raised the claim and made a good-faith effort in
presenting it.

        Let us start with the basics: The nature of an ineffective-assistance-of-trial-counsel claim
is that it “normally requires a different attorney, because it often ‘depend[s] on evidence outside
the trial record[.]’” Trevino, 569 U.S. at 422 (citation omitted). Such a claim “generally cannot
be presented until after the termination of direct appeal” and thus “necessarily must be heard in
collateral proceedings.” Davila, 137 S. Ct. at 2068. Yet there is no constitutional right to
counsel in collateral proceedings, and so prisoners seeking to allege a violation of their
fundamental right to counsel at trial are often unrepresented. See ibid. This creates a situation in
which a prisoner who believes that he was provided inadequate counsel at trial, but who has no
counsel (or ineffective counsel) in collateral proceedings, might “fail[] to raise” the claim,
thereby “depriv[ing] a defendant of any review of that claim at all.” Trevino, 569 U.S. at 423;
see also Martinez, 566 U.S. at 7 (noting that Martinez was denied relief in state court “because
he failed to raise his claims in the first collateral proceeding”). Not excusing a procedural
default even though the failure to raise it was not attributable to the petitioner would render the
possible constitutional violation permanently unremedied. Thus, the problem that Martinez
identified (and hoped to remedy) was that “it would be inequitable to refuse to hear a defaulted
claim of ineffective assistance of trial counsel . . . where the prisoner might lack the assistance of
counsel in raising it.” Davila, 137 S. Ct. at 2068 (emphasis added); see also Trevino, 569 U.S. at
 No. 17-6024                              Hugueley v. Mays                                  Page 14


429 (noting that it was concerned with prisoners having a “meaningful opportunity to raise a
claim of ineffective assistance of trial counsel”).

       Martinez and its progeny clearly establish that post-conviction counsel’s failure to raise a
substantial claim of ineffective-assistance-of-trial-counsel constitutes deficient performance.
However, because there is no right to counsel in post-conviction proceedings, a showing of
deficient performance for failure to take certain actions after the claim has been properly raised
is extremely difficult. A counsel’s performance is deficient only if she performed at a level
below that of “the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). Since a petitioner has no Sixth Amendment right to
counsel in a post-conviction proceeding, it therefore follows that counsel cannot be ineffective
for not taking all possible steps to fully develop the claim that the petitioner wishes she had.

       Here, it is undisputed that Gleason vigorously raised Hugueley’s ineffective-assistance-
of-trial-counsel claim, including how trial counsel failed to properly litigate his competency to
stand trial or to waive the presentation of mitigating evidence. Starting in January 2007, Gleason
also spent several months exploring avenues for evidence in support of the claim, including
filing motions for experts and submitting Hugueley’s mental-health reports into the record.
When Hugueley first expressed a desire to withdraw his petition, Gleason also independently
raised her own concerns about his competency, and successfully demonstrated that a genuine
issue existed on that point. This resulted in the post-conviction court’s careful review of the
issue, and its appointment of Dr. Seidner. Throughout the process, Gleason also repeatedly
sought to obtain funding for expert services and brain-imaging scans on behalf of Hugueley and
apparently made several attempts to arrange Dr. Brown’s evaluation of him.

       Even if Gleason had filed repetitive motions for additional expert assistance or brain-
imaging scans, there was no indication that the post-conviction court would have granted them.
And even if the motions were granted, there was no indication that additional experts or new
brain scans would have so obviously revealed Hugueley’s alleged incompetency that the post-
conviction court’s conclusion to the contrary was clearly incorrect. See Franklin v. Bradshaw,
695 F.3d 439, 447 (6th Cir. 2012) (“A state-court determination of competence is a factual
finding, to which deference must be paid.”); 28 U.S.C. § 2254(e)(1) (“[A] determination of a
 No. 17-6024                                      Hugueley v. Mays                                           Page 15


factual issue made by a State court shall be presumed to be correct. The applicant shall have the
burden of rebutting the presumption of correctness by clear and convincing evidence.”). Every
mental-health expert who had evaluated Hugueley up to that point had determined that he was
competent, and upon granting Hugueley’s motion to withdraw his petition, the post-conviction
court remarked that “[i]t seems clear from petitioner’s statements that he not only understands
the ramifications of the choice he is making; but, clearly understands the legal process involved
in exercising such a choice.” The court further stated that Hugueley “appears particularly adept
at manipulating the system to suit his purpose. Thus, his choices appear both cogent and
rational.” Put simply, even if Gleason had pursued all possible avenues to further develop
evidence of Hugueley’s alleged incompetency, it is far from certain that any of the additional
steps that could have been taken would have resulted in a different ruling from the post-
conviction court.

         The “equitable judgment” animating Martinez was that a state could “deliberately
choos[e] to move trial-ineffectiveness claims outside of the direct-appeal process, where counsel
is constitutionally guaranteed,’” into a proceeding where counsel was not guaranteed, thereby
“significantly diminish[ing] prisoners’ ability to file such claims.” Martinez, 566 U.S. at 13.
Such a concern is not present in situations such as Hugueley’s, where the claim is fully raised,
but defaulted due to the petitioner’s own choices. Despite Gleason’s efforts in raising and
attempting to present Hugueley’s ineffective-assistance-of-trial-counsel claim, the post-
conviction court was prevented from evaluating the claim because Hugueley chose to withdraw
his petition. Therefore, Martinez cannot provide a basis to excuse the default.4


         4On   this appeal, Hugueley raises a new theory of relief that was never raised before: that his trial attorneys
were ineffective for failing to investigate whether he was competent when he was convicted of his prior violent
felonies, each of which was an aggravating factor that resulted in him receiving the death penalty. Hugueley argues
that the failure to raise this argument demonstrates a cause to excuse his procedural default. However, even if this
theory of relief was not raised in the state post-conviction proceedings, the vehicle through which Hugueley could
obtain relief through the theory—his ineffective-assistance-of-trial-counsel claim—unquestionably was. “Once a
federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to
the precise arguments they made below.” Yee v. City of Escondido, 503 U.S. 519, 534 (1992); see also Leonor v.
Provident Life & Accident Co., 790 F.3d 682, 687 (6th Cir. 2015) (“We have recognized a distinction between
failing to properly raise a claim before the district court and failing to make an argument in support of that claim.”).
Hugueley’s post-conviction counsel could not have been ineffective by not raising one theory of relief that could
have possibly underpinned his ineffective-assistance-of-trial-counsel claim. Holding that Hugueley’s post-
conviction counsel was ineffective on such a shaky basis would permit future petitioners seeking relief under
 No. 17-6024                                      Hugueley v. Mays                                            Page 16


                                                         ***

         For the foregoing reasons, the denial of Hugueley’s habeas petition is AFFIRMED.




Martinez to take multiple bites at the apple, as they could simply argue that their post-conviction counsel did not
raise one (of possibly many) theories of relief in support of a traditional ineffective-assistance-of-trial-counsel claim.
