Tarvin v. State of Tennessee et al
MEMORANDUM AND OPINION. Petitioners petitions for a writ of habeas corpus [Doc. 1] will be DENIED and this action will be DISMISSED. An Appropriate Order Will Enter. Signed by District Judge Curtis L Collier on 8/7/2017. (AML, ) Copy of M/O mailed to Corey Tarvin
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
STATE OF TENNESSEE and DEBRA K.
This is a pro se prisoner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
[Doc. 1]. Respondents filed a response in opposition thereto, as well as a copy of the state record
[Docs. 18 and 19]. For the reasons set forth below, Petitioner’s § 2254 petition [Doc. 1] will be
DENIED and this action will be DISMISSED.
A Hamilton County jury found Petitioner guilty of one count of first-degree murder [State
Court Record p. 16]. Petitioner appealed and the Tennessee Court of Criminal Appeals (“TCCA”)
affirmed the conviction. State v. Tarvin, No. E2007-01927-CCA-R3-CD, 2009 WL 311565, at *6
(Tenn. Crim. App. Feb. 6, 2009). Petitioner filed a petition for post-conviction relief, which the
post-conviction court denied [State Court Record p. 824–837]. The TCCA affirmed this denial.
Tarvin v. State, No. E2012-01211-CCA-R3-PC, 2014 WL 259675, at *22 (Tenn. Crim. App. Jan.
22, 2014), perm. app. denied (Tenn. Feb. 12, 2014).
The following factual background is taken from the TCCA’s opinion on direct appeal of
At the defendant’s May 22–25, 2007, trial, Officer Matthew Talley
of the East Ridge Police Department testified that on June 15, 2005,
. . . at 12:07 a.m., he received a call that there was an apparent
gunshot victim lying in the middle of the street in the 600 block of
North Holly. He stated that when he and his fellow officers
responded to that location, they saw a large crowd in the middle of
the street and the victim lying in the street partially on his side with
his face down. He testified that, according to the report he had
prepared, witnesses at the scene reported that an unknown suspect
had fled the area in a blue Blazer. On cross-examination, he
acknowledged that his report indicated that witnesses also stated that
the victim and the defendant had been arguing before the shooting.
Detective Gregory Mardis of the Chattanooga Police Department
testified that he was an investigator with the crime scene unit and
responded to the scene of the shooting at 1:19 a.m. on June 15, 2005.
He stated that when he arrived, another investigator related that the
defendant and the victim had gotten into an argument, that a fight
had ensued, and that the defendant had retrieved a gun from his
vehicle, shot the victim, and fled the scene. Detective Mardis
identified a number of items that were subsequently admitted into
evidence, including crime scene photographs that showed where the
victim’s blood had “puddled up on the street[.]” He stated that he
searched the area but was unable to locate any weapon.
Lottie Stamper, who said she lived at 609 North Holly Street and
had known the defendant for years, testified that on the night of the
shooting, the defendant and a number of other individuals were
“hanging out” in the vicinity of Larry Harper’s duplex located at 618
North Holly. She said that another neighborhood resident known as
Greg or “Fat Boy” spoke to the defendant’s girlfriend and that the
defendant became angry, telling him that he could not be “hollering
at [his] bitch like that.” She stated that the two men exchanged
words and then began fighting. She testified that two other men,
Ladarius and Cornelius, became involved and that the victim, who
was visiting his aunt at 614 North Holly, walked down the street to
attempt to break up the fight. She said the victim was unsuccessful,
walked back to his aunt’s house, and went inside. She testified that
the victim then came out of his aunt’s house and walked to his car,
talking about his “Game Boy.” She stated that the defendant and
the other men were no longer fighting at that time but were still
down the street at Harper’s house arguing.
Stamper described the shooting:
[The victim] went in the car, he was bent over in the car. As he
came out [of] the car, we was sitting on the corner. By that time, [the
defendant] came out of [Harper’s] house and somebody said “Gun!”
Everybody . . . left the street so fast, and . . . me and one of my
neighbors . . . said at the same time, “Somebody going to get shot.”
By that time, [the victim] had, you know, one knee in the car . . . .
And he’s coming out. As he turned, [the defendant] was coming up
the street with the gun, fired the shot, [the victim] fell, everybody
Stamper further testified as follows. She went to the victim and
began applying pressure to his wound. As she did so, he kept asking
what he had done and why had he been shot. She was still with the
victim when the defendant drove down the street toward them in a
sports utility vehicle, and she overheard him say, “I’m going to run
over that motherf–––––.” She put herself in front of the victim and
told the defendant not to do it. He paused a minute, said, “I should
have ran over that motherf–––––,” and then drove off.
Stamper testified that she did not tell the police that the victim was
involved in the argument or the fight and suggested that either the
police officer who took her statement misunderstood her or that she
misspoke and said the victim’s name when she meant to say Greg.
She stated that she saw the defendant go to his vehicle at some point
between the fight and the shooting but that she did not see him
retrieve a gun from the vehicle. She said the defendant was the only
one she saw with a gun that night. Finally, she testified that although
the defendant had grown up with her children and been “just like a
son,” she felt obligated to testify against him because she had
witnessed him kill the victim.
On cross-examination, defense counsel played a portion of
Stamper’s tape-recorded statement to police, made within a few
hours of the shooting. Stamper acknowledged that she said in the
statement that the victim and the defendant were arguing over a girl
and got into a fight and that the victim’s cousins attempted to break
up the fight. She further acknowledged that she never said anything
in her statement about the victim’s having gone to retrieve
something from his car, instead telling the police officer that the
victim was walking away from the fight when he was shot. She
explained the discrepancies by stating that she might have said
anything in the immediate hours after the shooting and insisted that
the account she provided on direct examination was accurate. She
testified, “Like I said, when the boy got shot, I could have said
anything. I don’t know. I hear what’s on there and I understand
what’s on there, but I’m telling you what happened, the way it
The victim’s cousin, Antoin Edwards, testified that he was twelve
years old at the time of the shooting and that he had been playing
video games that night with the victim at his aunt’s house, where
two other cousins, Ladarius and Cornelius, were present. He said
that he heard voices outside and that the victim and Cornelius left
the house. He stated that the voices got louder and that he looked
out the window and saw the defendant shoot the victim in the back.
He estimated that the men were within a foot of each other when the
shot was fired and said that he did not see anything that preceded
Homicide Detective James Tate of the Chattanooga Police
Department testified that the defendant was arrested at
approximately 11:00 a.m. on June 16, 2005, and brought to the
“service center” where he and Detective Miller questioned him
about the crime. He identified the defendant’s waiver of rights form
and his tape-recorded statement, which were subsequently admitted
into evidence. In the statement, played for the jury, the defendant
said that he and Gregory Scott got into a fight after Scott
“disrespected” the defendant’s girlfriend. He said that after three or
four minutes of one-on-one fighting, two to four other men jumped
in, ganged up on him, and tore off his shirt. The defendant stated
that he told the men the fight was over and that they broke loose,
letting him go. He said that he was walking away when he noticed
a second group of people headed down the street toward him. He
stated that he “made up [his] mind,” went to the porch of a duplex,
retrieved a hidden gun, turned around, and fired at the victim, who
had been following him and who turned and began to run away when
he saw that the defendant had a gun. The defendant stated that he
had to “rack” the gun in order to fire the shot. He said that he
intended to commit an aggravated assault on the victim and did not
mean to kill him.
Detective Tate testified that the gun came from the porch of 618
North Holly Street, which was more than twenty yards from where
the victim’s body was found. He said the defendant had no visible
cuts or abrasions on his face or hands during the interview and did
not appear to have been in a recent fight. He testified that the
defendant never identified the victim as one of the major participants
in the altercation. On cross-examination, he acknowledged that the
shirt identified as the one the defendant had been wearing on the
night of the altercation was torn.
Frank King, Jr., M.D., the Hamilton County medical examiner who
performed the autopsy of the victim’s body, testified that the cause
of death was a gunshot wound in which the bullet entered the
victim’s body at the left lower back, grazed against the spine, tore
the aorta, went through the bowel, and exited at the right anterior
abdomen. He classified it as a distant gunshot wound, fired from a
distance of two feet or greater, and he said that it entered the body
at 45.5 inches above the heel and exited at 44.5 inches above the
heel, which meant that it descended one inch from point of entry to
point of exit with the body in “anatomic position.” He stated that he
observed no fresh injuries to the victim’s head, hands, or legs other
than those caused by the emergency medical care he received after
the gunshot. He testified that he found two fresh abrasions on the
back right shoulder, which could be consistent with the victim’s
having fallen to the pavement after being shot. During his
testimony, Dr. King identified several autopsy photographs, which
were admitted into evidence and published to the jury. On crossexamination, he acknowledged that the victim’s hands had been
washed in the emergency room and that he had no way of knowing
the exact position of the victim’s body, head, or limbs at the time he
was shot other than that his lower left back was facing the direction
The defendant elected not to testify and presented no witnesses in
State v. Tarvin, 2009 WL at *1–4.
The following factual background is taken from the TCCA’s opinion on appeal of
Petitioner’s petition for post-conviction relief:
At the post-conviction hearing, counsel testified that he did not
subpoena witnesses for the trial, although the Petitioner provided a
list of four or five names the Petitioner thought had beneficial
information. He said he asked the Petitioner for contact information,
but the Petitioner was unable to provide addresses and working
telephone numbers. He said he attempted to find the people on the
list by going to Holly Street where the killing occurred. He said he
and his paralegal tried to find the people on the list by canvassing
the neighborhood and talking to people. He denied talking to
anyone on the Petitioner's list and said nobody admitted knowing
any of them. He said that they were unsuccessful in obtaining
contact information for the people on the list and that he did not
subpoena them because he could not find them. He said that he
asked the Petitioner to identify other people who might provide
information about how to find the people on the list but that counsel
was still unable to find them.
Counsel testified that he did not have an investigator or request the
court to provide funds for an investigator. He said the Petitioner’s
case was pending at a time when he was responsible for the
investigation. He denied that an investigator would have located the
people on the list.
Counsel testified that recordings of the Defendant’s and the
witnesses’ statements to the police were provided in the discovery
package, and he agreed a recording of Amanda Wynn’s statement
was included. When asked if he went to the address provided by
Ms. Wynn in her statement to the police, he said he pursued any
information that might have helped locate the witnesses. He said
that in the neighborhood where the shooting occurred, it was
common for people to hide because they did not want to participate
as witnesses or discuss the case. He said that the difficulty in
locating witnesses did not mean he did not look for them and that he
was not shocked when he did not find them.
Counsel testified that he did not know if he went to 2305 Barley
Street. When he was told Ms. Wynn lived there, counsel said, he
would have tried to locate the address. He said that he would have
gone to where the address should have been but that he was unsure
if it was a “specific address.” He said it was common to be unable
to find a house at the address provided by a witness. He said that
although he was unsure if a house was located at 2305 Barley Street,
he went to the area looking for the address.
Counsel testified that he twice discussed with the Petitioner his
inability to locate the people on the list and that they discussed his
inability to find the people “within a reasonable proximity of the
time.” He said that his inability to locate them was not the reason
he chose not to present a self-defense theory. He said he discussed
with the Petitioner his decision not to argue self-defense at the trial.
He said he explained to the Petitioner that he could be convicted of
first degree murder, second degree murder, or manslaughter. He
explained the elements of each offense and the likelihood of
conviction and told the Petitioner that he believed the Petitioner was
most likely to be convicted of second degree murder, although the
jury convicted the Petitioner of first degree murder. Counsel stated
that the Petitioner did not want to accept any plea offer that would
result in a nineteen-year prison sentence. He said the Petitioner
stated, “If I’m going to get that time, they’re going to have to give it
to me. I’m not going to take it.” He believed the Petitioner thought
the worst possible outcome was a voluntary manslaughter
conviction and a nineteen-year sentence and said he attempted to
explain to the Petitioner that “he had a lot of exposure.” He said the
Counsel testified that he discussed with the Petitioner whether the
Petitioner should testify at the trial. He denied the theory of the case
was self-defense and said the Petitioner told him that he was
involved in a fight with a group of people but left the scene, returned
with a weapon, and shot the victim. He said this was consistent with
the Petitioner’s statement to the police, which was played for the
jury. He said the Petitioner’s leaving the scene after the fight
prevented a self-defense theory. He said that in his opinion, it was
unwise for the Petitioner to testify. He agreed the Petitioner referred
to multiple fights in his statement to the police but said the Petitioner
discussed “breaking away” from a fight and obtaining a weapon,
preventing a self-defense theory. He agreed that the Petitioner’s
baseball jersey was torn during the fight and said that the tear was
significant because the material was strong and durable. He said he
used this evidence, in part, to show the Petitioner’s state of mind at
the time of the shooting and that the Petitioner was not operating
with a “clear head” or premeditation. He said that he did not request
a self-defense jury instruction because the facts did not support it
and because self-defense was not the trial strategy.
Counsel testified that he did not recall if the box cutter found at the
scene was introduced at the trial. He said it was difficult to link the
box cutter to someone involved in the fight who used it against the
Petitioner. He did not recall questioning before the trial the police
officer who testified about the box cutter. He denied that the box
cutter was analyzed for fingerprints and said he did not address the
failure to have it analyzed at the trial because he could not “place
the box cutter in any particular person’s hands.”
Counsel testified that they discussed the Petitioner’s testifying at the
trial on “a number of occasions” before the trial and after the State’s
case-in-chief. He advised the Petitioner not to testify and said he
always discussed with his clients that counsel made certain
decisions during the trial and that the defendant made certain
decisions. He said he explained that the trial strategy of focusing on
the Petitioner’s state of mind rather than arguing self-defense was
counsel’s decision and that the decision to accept a plea offer and
whether to testify at the trial belonged to the Petitioner. He said the
Petitioner understood that he thought the Petitioner should accept a
plea offer and that he did not recommend the Petitioner testify at the
trial. He said the Petitioner understood that it was his decision to
testify and that he could testify if he disagreed with counsel’s
recommendation. Counsel believed the Petitioner’s testimony
would have harmed the case because the Petitioner risked having his
criminal history introduced at the trial. He said that the Petitioner
knew the defense was not calling any witnesses when he made his
decision not to testify.
Counsel testified that aspects of the Petitioner’s statement to the
police were not “fleshed out as perhaps they could have been if he
testified.” He said, though, that having a witness testify about one
favorable topic did not justify presenting the witness at the risk of
having numerous unfavorable topics addressed on crossexamination. He said that the Petitioner could have “fleshed out
some things” had he testified but that his testimony would not have
been materially different from his statement to the police. He said,
too, that cross-examination regarding the Petitioner’s criminal
history would have “overshadowed” any favorable testimony
regarding the events leading to the shooting. He denied the
Petitioner told him that after he obtained the gun, the victim stood
behind him and two other people stood in front of him. He did not
recall whether Ms. Wynn testified similarly at the trial. He recalled
that the victim stood behind the Petitioner and that the Petitioner
turned and shot the victim in the back, but he did not recall two men
standing behind the Petitioner.
Counsel testified that he knew about the Petitioner’s eye
condition, macular degeneration, and that evidence of the condition
was not introduced at the trial. He agreed his trial strategy was to
obtain a conviction for voluntary manslaughter but denied that the
condition would have been helpful. He said the testimony showed
that the Petitioner thought someone was coming toward him, that
the Petitioner fired the gun, and that the victim was shot in the back.
He said that there “were issues” about the distance between the
victim and the Petitioner and that testimony showed the Petitioner
was not able to identify clearly whom he shot. Counsel did not think
it mattered that the Petitioner had macular degeneration because the
testimony showed that the Petitioner “was just shooting at a form,
an object that he saw[.]” He denied that the Petitioner’s eye
condition might explain why the Petitioner did not know if he shot
someone who was facing him or had their back to him.
Counsel testified that he recalled cross-examining Lottie Stamper
but did not recall asking about her two misdemeanor theft
convictions that occurred within ten years of the trial. He recalled
that Ms. Stamper lived on the street where the shooting occurred and
that she held the victim in her arms after he was shot. He said that
although he did not recall if he asked Ms. Stamper about the
convictions, he did not think the convictions would have changed
the jurors’ view of her testimony given the emotional nature of her
testimony. He agreed Ms. Stamper provided a statement to the
police that differed from her testimony. He said he highlighted the
discrepancies during cross-examination by playing the relevant
portions of her recorded statement to the police. He denied playing
her entire statement. He agreed Ms. Stamper testified that the
Petitioner stated twice he was going to “run this MFer over.” He
did not know why he did not object but said that his usual practice
was not to draw attention to statements of that nature because the
judge might overrule an objection. He recalled thinking Ms.
Stamper’s testimony was highly emotional and dishonest.
Counsel testified that Ms. Stamper stated at the trial that the victim
only attempted to stop the fight and that she found the victim’s
gunshot wound by pulling up the victim’s shirt. He agreed Ms.
Stamper said in her statement to the police that the victim “took off
his shirt before he . . . began to fight.” He agreed he did not address
the inconsistency at the trial and said he did not think highlighting
the inconsistent statement would have changed the jury’s verdict
because the victim was shot regardless of whether he wore his shirt
at the time. He said he highlighted the consistencies that were most
relevant to the theory of the case. He recalled that Ms. Stamper was
an uncontrollable witness who said what she wanted to say and that
he attempted to craft his questions carefully to prevent her from
“going off the tracks.” He did not want to object and hear the trial
judge say, “You asked the question.”
Counsel testified that he did not request special jury instructions
regarding witness credibility and said the standard instruction was
given. He said he reviewed the pattern jury instructions before the
trial and determined which instructions he needed to request. He
did not recall asking for a special instruction regarding witnesses
convicted of crimes of dishonesty but said even if the jury
discredited Ms. Stamper’s testimony in its entirety, the outcome of
the trial would have been the same because of the Petitioner’s
statement to the police. He agreed, though, that Ms. Stamper was
the only witness who testified that the Petitioner said, “I should run
that Mfer over.” He agreed that Ms. Stamper testified that she either
got in front of the car or protected the victim with her body and that
the Petitioner said he should run over the victim. He agreed the
implication was that the Petitioner was driving the car. He agreed
he did not question her about the Petitioner’s eye condition and said
he knew she did not know about the Petitioner’s macular
degeneration because he spoke with her before the trial. He said that
Ms. Stamper had known the Petitioner since he was a child and that
she probably noticed something unusual about the Petitioner’s eyes.
He said, though, that she could have attributed the unusual eye
appearance to the Petitioner’s frequent drug use. He did not want to
present testimony about the Petitioner’s drug use.
Counsel testified that he did not ask Antoin Edwards if he heard the
Petitioner say the Petitioner should run over the victim. He said,
though, that the strongest evidence of premeditation was the
Petitioner’s leaving the scene, obtaining a gun, and returning to the
scene. He said it showed the Petitioner had the intent to kill but not
necessarily that the Petitioner intended to kill the victim. He said
that although the Petitioner said he did not know at whom he was
shooting, the Petitioner told him that he had the intent to kill when
he obtained the gun.
Counsel testified that he did not present a self-defense theory
because the Petitioner disengaged from the fight, returned with a
gun, and shot the victim because he thought the victim was coming
after him. He said that these facts did not support self-defense and
that nobody else had a gun that night. He said the facts better
supported a state-of-mind theory that focused on the Petitioner’s
agitation after being involved in a fight with multiple people.
On cross-examination, counsel testified that he had practiced law
since 1992 and that he had practiced criminal law since 1997 or
1998. He agreed he was appointed to represent the Petitioner on
August 24, 2006, after previous counsel was permitted to withdraw.
He said previous counsel provided him with the case file, which
contained research and investigation results. He said that one of the
reasons he did not employ an investigator was because previous
counsel had investigated and researched the case. He concluded that
an investigator was unnecessary. He said previous counsel’s file
contained the State’s discovery package. He agreed that he
reviewed those documents with the Petitioner before the trial, that
he provided the Petitioner a copy of the materials, and that they
discussed the facts of the case many times. He said the Petitioner
told him that the Petitioner had people to read the documents to him.
Counsel testified that before the trial, he and the Petitioner discussed
the strategy of focusing on the Petitioner’s state of mind. Although
he did not recall the Petitioner’s objecting to his chosen strategy, he
said it would not have changed his decision. He said that the
Petitioner was polite and that the Petitioner probably would have
expressed his disagreement but respected counsel’s decision.
Counsel testified that he received a plea offer from the State several
weeks before the trial and that the Petitioner rejected it. He said that
the week before the trial, he spoke to the prosecutor again, that he
negotiated nineteen years, and that the Petitioner rejected it, too. He
thought that the most likely outcome at the trial was a second
degree murder conviction and said that he and the Petitioner
discussed his opinion and that he encouraged the Petitioner to accept
the offer. He said, though, he made clear it was the Petitioner’s
decision whether to accept the offer.
Counsel testified that the Petitioner’s recorded statement to the
police was played at the trial and that the jury was provided a
transcript of the statement. He agreed that by having the recording
played for the jury, the Petitioner received the benefit of not being
subject to cross-examination and not having unfavorable
information presented. Although he did not recall discussing these
benefits with the Petitioner, he recalled discussing the “pitfalls” of
the Petitioner’s testifying. He said that a Momon hearing was held
during the trial and that the Petitioner decided not to testify.
Counsel testified that in his experience many witnesses testified
differently from their prior statements. He agreed that he impeached
Ms. Stamper with her prior recorded statement. He recalled Ms.
Stamper testified at the trial that she did not remember what she told
the police and that she did not remember speaking to the police other
than to tell the officer the Petitioner shot the victim.
As to his lack of requesting an instruction regarding impeachment,
counsel agreed the trial transcript showed that the following
instruction was provided to the jury:
Credibility of a witness: it is your job to decide what
the facts of this case are. You must decide which
witnesses you believe and how important you think
their testimony is. You do not have to accept or
reject everything a witness said. You’re free to
believe all, none or any part of a person’s testimony.
He said that he was comfortable with the instruction and did not
request a special instruction. He agreed that self-defense was not
fairly raised by the proof.
Counsel testified that Antoin Edwards testified at the trial and that
he did not ask Mr. Edwards about the Petitioner’s statements after
the victim was shot because he did not want the substance of the
statements repeated for the jury. He said he was unable to interview
Mr. Edwards before the trial and was unsure what Mr. Edwards
would say about the Petitioner’s statements. He said that for
strategic reasons, he chose not to question Mr. Edwards about the
statement. He said that before the trial, he attempted to interview
some of the State’s witnesses by telephone, by going to their homes,
and by canvassing the neighborhood where the shooting occurred.
On redirect examination, counsel testified that he thought Mr.
Edwards would not speak to him before the trial but was uncertain.
He said that earlier in his career, he asked a witness during a trial
why he or she refused to speak to him, that he thought this would
impact a juror’s perception of the witness, but that he no longer
asked because it never gave him the anticipated result.
The Petitioner testified that around midnight on the night of the
shooting, he was sitting on the front porch of his uncle’s house with
Amanda Wynn, a family friend. He said that there were a couple of
house parties that night and that a group of people were standing in
the street in front of his uncle’s house. He said that Ms. Wynn
walked to a store nearby and that she was harassed by some men
walking down the street. He said that Greg Scott was the only
person he knew at the house party and that he yelled at Mr. Scott to
walk to the Petitioner’s uncle’s house to discuss “the situation.” He
said that he knew Mr. Scott from the neighborhood, that Mr. Scott
was like a brother, and that they had fought before the night of the
shooting. He said that he and Mr. Scott talked and that the
conversation escalated into a fight. He said that as he and Mr. Scott
began fighting, three or four other men joined the fight. He said he
did not know from where the men came but knew he was “hit, pulled
on, pushed on” and felt something slash his shirt. He said he
attempted to break away because he knew someone had a weapon.
He said he was cut by the weapon. He said he broke free, ran, and,
for protection, obtained a gun from his car located next door. He
said that as he grabbed the gun and turned around, he saw the victim
holding a box cutter and that the “gun just went off” because it was
an automatic reflex. He said he only fired once to get the victim to
leave him alone and denied firing the gun intentionally.
The Petitioner testified that only one person stood behind him at the
time of the shooting. When asked if the victim was “coming after”
him, the Petitioner said, “[H]e had to be ... when I turned around
with [the gun], he was right there on my back.” He said the victim
was shot in the side, not the back. He said the exit wound was on
the victim’s back because of the manner in which the victim turned.
He said he was scared of the victim’s cutting him with the box cutter.
He said that the victim previously cut him slightly when his shirt
was cut and that he feared another cut would have been more severe.
The Petitioner testified that after the gun fired, he dropped the gun
and ran to his car and that Ms. Wynn got into the driver’s seat of his
car and drove them from the scene. He said that Ms. Wynn drove
the car away from the victim, that the windows were down when she
drove away, and that he did not say, “I should run over that Mfer.”
He said Ms. Wynn took him home. He said he collected his thoughts
and went to the police department the next day.
The Petitioner testified that he was diagnosed with macular
degeneration when he was five or six years old, which “block[ed]
the front of [his] pupils.” He said that he could not see well the night
of the shooting and that although he could see the men’s bodies
during the fight, he could not see their faces. He said his vision
problems were worse at night. He denied knowing anyone other than
Mr. Scott. He admitted that he did not know if the victim had a
weapon after he pulled out the gun but said he knew he had already
been cut and thought the victim was going to cut him again.
The Petitioner testified that he wrote counsel a letter asking him to
subpoena Mr. Scott, Ms. Wynn, Carmen Giles, Tameika “Meka”
Reynolds, and Amanda Angland, who were present at the time of
the shooting. He said he wrote these potential witnesses letters in
which he discussed their testifying on his behalf at the trial. He said
that he mailed the letters from the jail and that they were not returned
to him. He agreed he provided each witness’s address and contact
information to counsel. The letters written by the Petitioner were
received as exhibits. He identified a March 30, 2007 letter he wrote
to Ms. Crawford, which stated that Ms. Crawford had spoken to
counsel recently and asked that she remain in contact with counsel
and testify at the trial. He agreed the trial date was not provided in
the letter. He identified a May 17, 2007 letter he wrote to Mr. Scott,
which stated that counsel and Mr. Scott had spoken recently and
asked that Mr. Scott inform his employer he would need a few days
off to testify at the trial. The letter told Mr. Scott that counsel would
write Mr. Scott’s supervisor a letter regarding any absences. He
identified an April 5, 2007 letter he wrote to Ms. Giles asking her to
contact counsel. He identified a December 30, 2006 letter he wrote
to Ms. Reynolds. The letter stated that counsel had spoken with her
recently and that he knew she had been out of town. The Petitioner
asked her to contact counsel should she leave town again. He
identified a March 3, 2007 letter he wrote to Ms. Wynn, which stated
that he knew she had spoken with counsel recently and that counsel
would contact her one week before the trial. The letter asked her to
contact counsel if she had not heard from counsel by the first of
May. He identified a January 30, 2007 letter he wrote to Ms.
Angland thanking her for staying in contact with counsel and for
providing counsel her new contact information and asking her to
continue to stay in contact with counsel.
The Petitioner identified a May 1, 2007 letter he wrote to counsel
stating he wanted to ensure that counsel had subpoenaed all the
witnesses, including the witnesses who were in contact with counsel
constantly. The letter identified Ms. Giles, Mr. Scott, Ms. Wynn,
Ms. Reynolds, Ms. Angland, and Ms. Crawford and told counsel
they were witnesses to the shooting. He said that he thought some
of these witnesses had moved because he had not received any
responses when he attempted to have the witnesses contact postconviction counsel.
The Petitioner testified that he spoke to counsel about self-defense
after he rejected the State’s final plea offer. He agreed the State
offered twenty and nineteen years for pleading guilty to second
degree murder. He said he thought the jurors would find he acted in
self-defense if they heard his side of the story. He said his story
about how the shooting occurred had never changed. He said that
the police yelled and cursed at him during the interview and that the
officers prevented him from telling the entire story. He said he
rejected the State’s offers because he believed he was provoked and
was protecting himself.
The Petitioner testified that he and counsel discussed his testifying
within one month of the trial date. He said counsel believed it was
not in the Petitioner’s best interest to testify. He decided to trust
counsel and his advice because this was the Petitioner’s first jury
trial. He agreed he told the trial court that he understood his right to
testify and that he decided not to testify based on counsel’s advice.
He denied knowing counsel was not going to present any witnesses
at the trial and said he thought at least one or two of the witnesses
he requested counsel to subpoena would testify. He said that had he
known counsel was not going to present witnesses, he would have
testified at the trial.
On cross-examination, the Petitioner testified that he did not provide
previous counsel with the letters he wrote to the potential witnesses
because it was too early before the trial. He said his case was not
set for trial until counsel was appointed. He said he learned the
witnesses’ addresses and telephone numbers from other people. He
said he asked people to go to the witnesses’ houses, knock on the
doors, talk to the people who lived there, and obtain the addresses.
He said he wrote the letters based on that information and relayed
the information to counsel. He said that although only one letter he
wrote to counsel was received as an exhibit, he wrote counsel more
than once. He denied his letters to counsel contained the witnesses’
addresses and telephone numbers. He said his letters asked counsel
to visit him at the jail in order to provide counsel the information.
He said counsel visited him at the jail three or four times in the nine
months before the trial.
The Petitioner testified that he told counsel and the police officers
who interviewed him the same facts. He said that although the
recording of the police interview did not show that he said the box
cutter cut him, he said it was unnecessary to say it because the
officers saw the cut due to his not wearing a shirt. He said the box
cutter and his shirt were recovered by the police before he gave his
statement. He agreed he told the police that he retrieved the gun
from his uncle’s porch but that he testified at the post-conviction
hearing that the gun was inside his car.
The Petitioner testified that after he picked up the gun and turned
around, the victim turned, that they “bumped,” and that he fired the
gun on reflex. He said the police officers’ yelling at him during the
interview prevented him from thinking clearly, but he maintained
his story had never changed. He agreed his statement to the police
showed that he “pulled the trigger” and that he did not mention a
reflex. He agreed that his statement to the police did not show that
he thought the victim and the others would leave him alone if they
saw the gun. He disagreed that he told the police that he “had to
cycle the gun” before shooting it and that he only wanted to give the
victim “a ball pinch or something, like an aggravated assault.” He
said the transcript of his police interview was “altered” because the
original recording contained “hollering and cursing.”
The Petitioner testified that counsel recommended that he not testify
at the trial because his criminal history would be addressed on crossexamination. He said later, though, that counsel never discussed his
criminal history. Although he denied having previous convictions
for violent crimes, he agreed he was previously convicted of
statutory rape and theft valued less than $500 and served six years
for a cocaine-related conviction. He denied those were serious
The Petitioner testified that counsel did not say he was unable to
locate the witnesses the Petitioner wanted subpoenaed and that
counsel lied when he testified to the contrary. He said that although
his statement to the police said he “got rid of the gun,” he dropped
the gun and ran after the shooting. He denied counsel told him that
his story did not support self-defense and said counsel lied when he
testified that they discussed counsel’s conclusions.
Gregory Scott testified that on the night of the shooting, he and the
Petitioner had “a little confrontation” and that “a couple other guys
jumped in it” because of issues they had with the Petitioner
previously. He said the other men “took it as a good opportunity to
handle . . . [their] business.” He identified the other men as the
victim and someone he knew only as Cornelius and said they
“ganged” the Petitioner. He said that he and the Petitioner fought
for about five minutes but that the victim and Cornelius continued
to “gang” him. He said that the Petitioner attempted to get away
from them but that the victim kept coming toward the Petitioner. He
said he did not see the Petitioner leave to get a gun. He said that
things happened quickly and that the fight did not end when the
victim was shot. He said that he was about ten yards from the victim
when he was shot but that he was walking back to his house because
he was not supposed to be outside. He denied seeing what occurred
from the time he walked away until the victim was shot, which was
about one minute. He admitted being on probation at the time of the
shooting. He said the victim and the Petitioner were face-to-face
when the victim was shot.
Mr. Scott testified that although the victim was trying to “get at” the
Petitioner when Mr. Scott turned to walk back to his house, people
were outside attempting to break up the fight. He said the fight
occurred a few feet from where the victim was shot. He saw the
Petitioner attempting to get away during the fight and the victim
“going after” the Petitioner. He said that he and the Petitioner grew
up together and that he knew the Petitioner had vision problems.
On cross-examination, Mr. Scott testified that he had previous
convictions for theft and automobile burglary. He denied talking to
counsel or anyone else before the trial about the fight and shooting.
He said that he did not provide a statement to anyone because he
was not asked and that he did not want to “deal with” the police if
he could avoid it. He said his confrontation with the Petitioner was
about a misunderstanding related to a girl. He said he stopped
fighting with the Petitioner after the victim and Cornelius joined the
fight. He said he returned home because he heard people talking
about calling the police and did not want to be involved.
Mr. Scott testified that he did not receive a letter from the Petitioner
when the Petitioner was in confinement. He read the letter
addressed to him that was previously received as an exhibit and said
he did not recall receiving it. He did not recall speaking with
counsel but knew the Petitioner was charged with murder. He did
not know anyone was looking for him before the Petitioner’s trial.
He said that because he looked away from the Petitioner and the
victim, he would not have been able to testify at the trial about the
Petitioner’s obtaining a gun, walking to the porch, or shooting the
victim. He said he did not have a box cutter that night and did not
recall anyone else having a box cutter. He agreed he was on
probation at the time of the shooting for a theft-related charge.
On redirect examination, Mr. Scott testified that although he did not
want to be involved, he would have testified had he been
subpoenaed to appear at the trial.
He agreed post-conviction counsel served him with a subpoena at
his probation officer’s office. He denied having a reason to lie and
said the last thing he saw was the victim “heading toward” the
Petitioner and their arguing.
The trial court found that counsel did not provide ineffective
assistance and denied relief. Regarding the Petitioner’s decision not
to testify at the trial, the court found that counsel was not deficient.
It found that the Petitioner knew the decision to testify was his, that
the Petitioner’s version of the events did not change before the trial,
that he did not tell counsel his statement was incomplete or
inaccurate, and that the Petitioner’s statement to the police was
presented at the trial. The court found that the Petitioner’s testifying
to the same events contained in the statement to the police was
“unlikely to advance the theory of the defense[.]” The court also
found that counsel properly advised the Petitioner that he would
have been subject to cross-examination and would have been
questioned about his criminal history, which included convictions
for violent offenses.
Regarding counsel’s failure to present witnesses and proof at the
trial, the trial court credited counsel’s testimony that the Petitioner
did not provide contact information for the six potential witnesses
identified at the post-conviction hearing. The court found that
counsel was unable to locate any witnesses, including Mr. Scott who
was on probation at the time of the shooting, after visiting the
neighborhood where the shooting occurred and questioning people
he encountered there. The court noted that it was undisputed that
counsel did not hire an investigator and stated that “in this digital
age, an investigator might have done more to locate the witnesses[.]”
The court noted that Mr. Scott was the only potential witness
presented at the post-conviction hearing. The court found that Mr.
Scott did not see what occurred in the minute leading to the shooting
because he turned away and began walking home. Regarding Ms.
Wynn, the court found that there was no evidence presented that her
statement was favorable to the Petitioner and that any deficiency in
counsel’s performance was not prejudicial.
Regarding counsel’s failure to cross-examine Ms. Stamper about her
previous theft conviction and failure to request a special jury
instruction about her credibility, the trial court found that Ms.
Stamper was questioned about her prior theft conviction on direct
examination and admitted pleading guilty and paying a fine,
although she denied having been convicted. The court found that
the jury was provided a pattern instruction on the credibility of
witnesses that referred to evidence of the witness’s intelligence,
respectability, and reputation for truthfulness. The court found that
counsel was not deficient.
Regarding counsel’s failure to cross-examine Mr. Edwards about
the inconsistency between his and Ms. Stamper’s testimony relating
to the Petitioner’s threat to run over the victim, the trial court found
that Mr. Edwards’s testimony did not exclude the possibility that the
Petitioner had driven away by the time Mr. Edwards left his home
and arrived at the location where the victim fell to the ground. The
court found that Mr. Edwards was inside when the argument began,
that he went to a window after hearing loud voices outside, and that
he saw the shooting. It found that Mr. Edwards left the window,
obtained a towel, and took the towel to his aunt, who was outside.
The court found that Mr. Edwards heard the victim say, “It hurt,”
and that “presumably, before he went to speak to his aunt and fetch
a towel, he saw the [P]etitioner drive away.” The court found that
any deficiency in counsel’s performance was not prejudicial in the
absence of evidence that Mr. Edwards could or would have
contradicted Ms. Stamper’s testimony regarding the threat.
Regarding counsel’s failure to pursue self-defense and to request a
self-defense jury instruction, the trial court found that the Petitioner
did not mention in his statement to the police that someone had a
box cutter and that his shirt and skin were cut before the shooting,
although the Petitioner said during his police interview that
his wound was obvious. The court noted that the Petitioner
attempted to convey the “defensive nature of his action” and that the
prosecutor argued that the Petitioner raised self-defense and passion
after he was apprehended. The court found that counsel argued at
the trial that the Petitioner attempted to disengage from the fight and
retrieved the gun after he was followed and perceived a threat. The
court found counsel noted the State’s experts concluded that the
victim and the Petitioner were about two feet apart at the time of the
shooting and were unable to determine the Petitioner’s location at
the time of the shooting. The court found that the Petitioner’s
account of the fight and shooting at the post-conviction hearing
raised an issue of self-defense but that at no time before or during
the trial, however, did he indicate to counsel that his statement to
police, which in the opinion of the Court of Criminal Appeals,
supports the theory of the prosecution of disengagement and
escalation, was incomplete or inaccurate in any way and for any
reason or give counsel a different account of events.
The trial court noted that the Petitioner obtained the gun from a place
more than twenty yards from where the victim fell and that Ms.
Stamper’s and Mr. Edwards’s testimony showed that at the time of
the shooting, the Petitioner was within a few feet of where the victim
fell. Based on this evidence, the court agreed with counsel that a
“complete-justification theory seem[ed] a less-probable explanation
of the facts than a provocation theory.” The court stated that
“although counsel did ... overlook the possibility that the
[P]etitioner’s intent in retrieving the gun was not to shoot someone
but to deter further attack,” any deficiency in this regard was not
Regarding counsel’s failure to introduce evidence of the Petitioner’s
having macular degeneration, the trial court questioned counsel’s
conclusion that the condition was not relevant. The court noted that
the prosecutor argued at the trial that the Petitioner never identified
the victim as one of the assailants. The court found that although
the Petitioner’s eye condition could have explained his inability to
identify any of the assailants, except for Mr. Scott, and his possible
“misapprehension of the ongoing threat and . . . overreaction,” the
evidence was minimal. The court noted that no evidence existed
explaining the discrepancy between the Petitioner’s stating that the
victim was on the Petitioner’s back when he retrieved the gun and
the victim’s falling in the street twenty yards away. The court found
that any deficiency in counsel’s performance was not prejudicial.
Tarvin v. State, 2014 WL at *4–15.
STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), codified in 28
U.S.C. § 2254, et. seq., a court considering a habeas claim must defer to any decision by a state
court concerning the claim, unless the state court’s judgment: (1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States; or (2) resulted in a decision that was based
on an unreasonable determination of the facts in light of the evidence presented in the state court
proceeding. 28 U.S.C. § 2254(d)(1)–(2).
The § 2254(d) standard is a hard standard to satisfy. Montgomery v. Bobby, 654 F.3d 668,
676 (6th Cir. 2011) (noting that “§ 2254(d), as amended by AEDPA, is a purposefully demanding
standard . . . ‘because it was meant to be’”) (quoting Harrington v. Richter, 131 S. Ct. 770, 786
(2011)). Further, where findings of fact are supported by the record, they are entitled to a
presumption of correctness which may be rebutted only by clear and convincing evidence. 28
U.S.C. § 2254(e)(1).
Petitioner’s § 2254 habeas corpus petition [Doc. 1] does not set forth any factual basis for
his claims, but rather generally alleges ineffective assistance of counsel and error on the part of
the trial court with regard to such claims [Id. at 9]. Specifically, other than case law citations,
ground one of the petition states only that “the Tennessee Court of Criminal Appeals[’] finding
that trial counsel rendered effective assistance of counsel and no violation was a decision involving
an unreasonable application of clearly established federal law as determined by the Supreme
Court.”1 Similarly, ground three of the petition states in substance only that “[n]one of the
deficiencies of counsel were the result of sound trial strategy and the trial court erred when it found
the testimony of counsel sufficient” [Id. at 9]. As such, the petition does not comply with Rule
2(c) of the Rules Governing Section 2254 Cases, which requires a petition to both specify all
grounds for relief available and state the facts supporting each ground. Rules Governing 2254
Cases, Rule 2(c)(1) and (2). Regardless, the Court liberally construes the § 2254 petition to assert
the claims for ineffective assistance of counsel Petitioner raised in his brief on appeal of the denial
of his petition for post-conviction relief and will therefore address it as such.
The petition contains no claims for relief in ground two [Doc. 1 p. 7].
The Sixth Amendment provides, in pertinent part, that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const.
amend. VI. A defendant has a Sixth Amendment right not just to counsel, but to “reasonably
effective assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). In
Strickland, the Supreme Court set forth a two-pronged test for evaluating claims of ineffective
assistance of counsel:
First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel” guaranteed
the defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction
. . . resulted from a breakdown in the adversary process that renders
the result unreliable.
Strickland, 466 U.S. at 687. Petitioner has the burden of showing both deficient performance and
prejudice. Smith v. Robbins, 528 U.S. 259, 285–86 (2000).
Under the first prong of the test, the appropriate measure of attorney performance is
“reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688. A defendant
asserting a claim of ineffective assistance must “identify the acts or omissions of counsel that are
alleged not to have been the result of reasonable professional judgment.” Id. at 690. The
evaluation of the objective reasonableness of counsel’s performance must be made “from
counsel’s perspective at the time of the alleged error and in light of all the circumstances, and the
standard of review is highly deferential.” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).
The second prong requires the petitioner to show that counsel’s deficient performance
prejudiced the defense. Thus, “[a]n error by counsel, even if professionally unreasonable, does
not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” Strickland, 466 U.S. at 691. In order to prevail on a claim of prejudice, a petitioner
must show “there is a reasonable probability that, absent the errors, the factfinder would have had
a reasonable doubt respecting guilt.” Id. at 695. While both prongs must be established to meet a
petitioner’s burden, if “it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice . . . that course should be followed.” Id. at 697.
Review of a Strickland claim under § 2254(d)(1) is “doubly deferential.” Knowles v.
Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 1420 (2009). Further, “[w]hen § 2254(d) applies,
the question is not whether counsel’s actions were reasonable,” but instead “whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.” Harrington v.
Richter, 131 S.Ct. 770, 788 (2011).
The Court will address Petitioner’s ineffective assistance of counsel claims from his brief
appealing the denial of his petition for post-conviction relief in turn, applying the above standard.
A. Subpoena Claim
In this claim, Petitioner asserted counsel was ineffective for not finding and subpoenaing
individuals that Petitioner had identified for counsel as potential witnesses [State Court Record p.
1165–69]. Specifically, Petitioner alleges he identified six witnesses to counsel he wanted to have
testify at trial, but counsel did not try to contact these witnesses until May 18, 2007, three days
before the trial [Id. at 1166–67]. One of these witnesses, Gregory Scott, testified at the postconviction hearing [Id. at 1180–1103]. His testimony was that the fight between Petitioner and
the other men was still occurring and that the victim was still trying to get towards Petitioner until
approximately a minute before Petitioner shot the victim [Id. at 1087–88]. Mr. Scott had turned
his back from the confrontation approximately a minute before the shot occurred, and therefore
did not see what occurred during this time [Id. at 1087–88]. Mr. Scott did not see Petitioner get a
gun, nor did he see any weapons used during the fight [Id. at 1085, 1090]. None of the other
individuals Petitioner had identified as witnesses testified at the post-conviction hearing, though
Petitioner filed letters he stated that he had sent to them regarding the case and trial testimony [Id.
Counsel’s testimony at the post-conviction hearing as to this claim was that Petitioner gave
him a list of potential witnesses, but did not provide contact information [Id. at 908]. Accordingly,
counsel and his paralegal attempted to find those people personally by canvassing the
neighborhood and approaching people [Id. at 908–09]. Despite this effort and despite asking
Petitioner to provide him with names of people who could get him in touch with the relevant
individuals, however, counsel was unable to locate them [Id. at 909–10].
In affirming the trial court’s denial of this claim for relief, the TCCA noted Petitioner had
a “fundamental, constitutional right to the ‘compulsory attendance of witnesses under the Sixth
Amendment of the United States Constitution, and Article I, Section 9, of the Constitution of
Tennessee.” Tarvin v. State, No. E2012-01211-CCA-R3-PC, 2014 WL 259675, at *16 (Tenn.
Crim. App. Jan. 22, 2014), perm. app. denied (Tenn. Feb. 12, 2014). The TCCA found, however,
that the trial court had credited counsel’s testimony Petitioner had not been able to provide him
with contact information for the potential witnesses, rather than Petitioner’s testimony that he had
written and mailed letters to the witnesses. Id. The TCCA also found Petitioner’s failure to present
any witnesses other than Mr. Scott at the post-conviction hearing prevented Petitioner from relief
for a claim that counsel was deficient for failing to locate and present that witness. Id. Further,
the TCCA found Petitioner had not established counsel’s failure to locate Mr. Scott through his
probation officer had prejudiced Petitioner, as Mr. Scott’s testimony was that he had walked away
from the fight and therefore did not see Petitioner walking to the porch, obtaining the gun, and
shooting the victim. Id.
Nothing in the record suggests the state courts’ denial of this claim was contrary to or an
unreasonable application of clearly established federal law, or that this denial was an unreasonable
determination of the facts in light of the evidence presented. Accordingly, Petitioner is not entitled
to relief on this claim.
B. Investigator Claim
Petitioner also asserts counsel was deficient for not hiring an investigator to locate the
witnesses at issue in the above claim [State Court Record p. 1169–70]. Specifically, Petitioner
asserts an investigator would have at least located Mr. Scott, and likely would have located and
subpoenaed other witnesses [Id. at 70]. Relying on the Strickland opinion’s statement that “inquiry
into counsel’s conversations with the defendant may be critical to proper assessment of counsel’s
investigation decisions,” Strickland, 466 U.S. at 691, counsel’s attempts to find the witnesses
detailed above, and the fact that counsel also relied on the investigation done by Petitioner’s prior
counsel, the TCCA found that counsel was not deficient for not hiring an investigator. Id. at 17–
Nothing in the record suggests the state courts’ denial of this claim was contrary to or an
unreasonable application of clearly established federal law, or that this denial was an unreasonable
determination of the facts in light of the evidence presented. Accordingly, Petitioner is not entitled
to relief on this claim.
C. Testimony Claim
In this claim, Petitioner asserts counsel was deficient for advising Petitioner not to testify
at trial, as Petitioner wanted to offer testimony to support a theory that he acted in self- defense
and did not realize counsel was not presenting such a theory or any witnesses [State Court Record
The TCCA determined the post-conviction court had credited counsel’s testimony that he
and Petitioner had discussed whether Petitioner should testify at trial and counsel had concluded
presentation of a self-defense theory was not supported by Petitioner’s version of the relevant
events, as Petitioner had told counsel he was involved in a fight, left the scene, returned to the
scene with a weapon, and shot the victim, which was consistent with Petitioner’s statement to the
police. Tarvin v. State, 2014 WL at *18. Further, the TCCA noted counsel believed any trial
testimony from Petitioner would be substantially similar to Petitioner’s police statement that was
played to the jury [Id.]. Thus, allowing that statement to be played at trial in lieu of Petitioner
testifying prevented Petitioner from being subject to cross-examination as to unfavorable subjects,
such as Petitioner’s criminal history, that would overshadow any favorable testimony, including
testimony that would allow Petitioner to “flesh out” what he had said in his police statement [Id.].
The TCCA further noted counsel testified that when Petitioner made the decision not to testify,
Petitioner knew he could testify if he wanted to, knew the defense was not calling witnesses, and
that Petitioner did not object to counsel’s strategy [Id. at 19]. This is an accurate summary of the
relevant portions of counsel’s testimony at the post-conviction hearing [State Court Record p. 920–
Accordingly, the TCCA found that none of the evidence presented, including Petitioner’s
statements, supported a theory of self-defense,2 that Petitioner avoided cross-examination as to his
Under Tennessee law, a criminal defendant who uses deadly force must show that he had
“‘a reasonable belief that there is imminent danger of death or serious bodily injury’” due to danger
that was real or that the defendant honestly believed was real. State v. Hawkins, 406 S.W.3d 121,
128 (Tenn. 2013) (quoting Tenn. Code Ann. § 39-11-611).
criminal history by not testifying, and that later changes in Petitioner’s testimony likely would
have further affected Petitioner’s credibility. Id.
The Court agrees with the TCCA that, as the record establishes Petitioner’s testimony
would have been substantially similar to his police statement played at trial, evidence of
Petitioner’s criminal history would have been unfavorable if brought out on cross-examination,
and any changes in Petitioner’s testimony likely would have further impacted Petitioner’s
credibility, Petitioner has not established that counsel was deficient for advising Petitioner not to
testify. Accordingly, the state courts’ denial of this claim was not contrary to or an unreasonable
application of clearly established federal law, nor was it an unreasonable determination of the facts
in light of the evidence presented, and Petitioner is thus not entitled to relief on this claim.
D. Impeachment and Jury Instruction Claim
In this claim, Petitioner asserts counsel was deficient for not cross-examining Lottie
Stamper on her previous inconsistent statements and her prior conviction for theft and for not
requesting a special jury instruction regarding this witness’s credibility [State Court Record p.
1172–74]. The TCCA found this claim was without merit, as the instructions to the jury regarding
judging the credibility of witnesses were adequate, Ms. Stamper had admitted to pleading guilty
and paying a fine for the subject conviction on direct examination, and counsel “had highlighted
the discrepancies in Ms. Stamper’s testimony by playing portions of her police interview,” thereby
strategically focusing on the inconsistencies that were “most relevant to his theory of the case.”
Id. at 21.
The TCCA’s findings with regard to this claim are consistent with the record and nothing
in the record suggests the state courts’ denial of this claim was contrary to or an unreasonable
application of clearly established federal law, or that this denial was an unreasonable determination
of the facts in light of the evidence presented. Accordingly, Petitioner is not entitled to relief on
E. Eye Condition Claim
In this claim, Petitioner asserts counsel was ineffective for not introducing proof of
Petitioner’s macular degeneration eye disorder [State Court Record p. 1174–76]. Petitioner asserts
that this eye condition and its effects on Petitioner’s vision, including the fact that Petitioner could
not see other than figures and through his peripheral vision, was relevant to Petitioner’s actions in
shooting the victim, as Petitioner had been in a fight and the victim had been continually
approaching Petitioner [Id. at 1175].
The TCCA found that the record demonstrated counsel did not introduce evidence of this
condition because it was not helpful to obtaining a conviction for voluntary manslaughter. Id. The
TCCA further noted counsel recalled the testimony at trial establishing that Petitioner thought
someone that he could not identify was approaching him and fired the gun, shooting the victim in
the back. Id. Further, the record showed that counsel did not introduce evidence of Petitioner’s
eye condition through Ms. Stamper because he was afraid that she would attribute Petitioner’s eye
condition to his drug use, a risk that counsel did not want to take. Id.
The TCCA acknowledged that counsel could have used the eye condition to explain why
“Petitioner did not have a clear head” and to support the proposition that Petitioner could not
clearly see the men attacking him and therefore “misinterpreted the threat against him.” Id. The
TCCA held, however, that in light of the evidence in the case, including Petitioner’s statement to
police that he retrieved a gun and returned to the victim’s location, any deficiency in counsel’s
performance on this issue “did not create a reasonable probability that, but for counsel’s
unprofessional errors, the result of the trial would have been different.” Id.
The Court agrees with the TCCA that, even assuming counsel was deficient in not
introducing evidence of this eye disorder, Petitioner has not met his burden to establish that any
such deficiency affected the outcome of the case. Accordingly, nothing in the record suggests the
state courts’ denial of this claim was contrary to or an unreasonable application of clearly
established federal law, or that this denial was an unreasonable determination of the facts in light
of the evidence presented. Petitioner is thus not entitled to relief on this claim.
For the reasons set forth above, the Court finds that none of Petitioner’s claims warrant
issuance of a writ. Therefore, Petitioner’s petitions for a writ of habeas corpus [Doc. 1] will be
DENIED and this action will be DISMISSED.
CERTIFICATE OF APPEALABILITY
The Court must now consider whether to issue a certificate of appealability (“COA”),
should Petitioner file a notice of appeal. Under 28 U.S.C. § 2253(a) and (c), a petitioner may
appeal a final order in a habeas proceeding only if he is issued a COA, and a COA may only be
issued where a Petitioner has made a substantial showing of the denial of a constitutional right. 28
U.S.C. § 2253(c)(2). Where the court dismissed a claim on the merits, but reasonable jurists could
conclude the issues raised are adequate to deserve further review, the petitioner has made a
substantial showing of the denial of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322,
327, 336 (2003); Slack, 529 U.S. at 484.
After reviewing each of Petitioner’s claims, the Court finds Petitioner has not made a
substantial showing of the denial of a constitutional right as to any claims. Specifically, Petitioner
has not shown that counsel was deficient and/or that there is a reasonable probability that, but for
any of counsel’s alleged errors, the result of the trial would have been different. Accordingly, a
COA SHALL NOT ISSUE.
AN APPROPRIATE ORDER WILL ENTER.
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE
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