McGaha v. Sexton
Filing
16
MEMORANDUM OPINION: For the above mentioned reasons, the Court finds that none of Petitioners claims warrant issuance of a writ. Therefore, Petitioners petition for a writ of habeas corpus [Doc. 2] will be DENIED and DISMISSED. The Court must consider whether to issue a Certificate of Appealability (COA), should Petitioner file a notice of appeal. Petitioner has failed to make a substantial showing of the denial of a constitutional right, a COA will not issue. See order for details. Signed by District Judge J Ronnie Greer on 5/18/2015. (c/m to petitioner) (RLC, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
CHARLES WADE MCGAHA,
Petitioner,
v.
GERALD MCALLISTER, WARDEN,
Northeast Correctional Complex,
Respondent.
)
)
)
)
)
)
)
)
)
)
No. 2:12-CV-75
MEMORANDUM OPINION
Charles Wade McGaha (“Petitioner”), a Tennessee inmate acting pro se, brings this
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the legality of his
confinement under a 2006 Cocke County, Tennessee Criminal Court judgment [Doc. 2]. A jury
convicted Petitioner of first degree felony murder and aggravated assault, for which he is serving
a life sentence. Respondent has filed an answer to the petition, which is supported by copies of
the state record [Docs. 6–7]. Respondent subsequently filed a motion to construe the answer as a
motion for summary judgment [Doc. 10], which the Court denied [Doc. 13]. Petitioner has
failed to respond to Respondent’s answer, and the time for doing so has passed.
I.
PROCEDURAL HISTORY
Petitioner’s convictions were affirmed on direct appeal by the Tennessee Court of
Criminal Appeals (“TCCA”), see State v. McGaha, No. E2006-01984-CCA-R3-CD, 2008 WL
148943 (Tenn. Crim. App. Jan. 16, 2008), and the Tennessee Supreme Court denied permission
to appeal. Petitioner’s subsequent application for post-conviction relief was denied by the trial
court, and affirmed on appeal by the TCCA. McGaha v. State, No. E2010-01926-CCA-R3-PC,
2011 WL 2162987 (Tenn. Crim. App. May 26, 2011). The Tennessee Supreme Court denied
permission to appeal. Petitioner next filed this timely petition for habeas relief.
II.
BACKGROUND
The following summary of the factual background is taken from the TCCA’s opinion on
direct appeal of Petitioner’s conviction.
On May 31, 2004, James Quinton Cox (the victim) was shot to
death at the home of Lisa Mathis in Cocke County. Subsequently,
the [Petitioner] was indicted for the first degree murder of Cox and
one count of aggravated assault against Mathis. The [Petitioner’s]
nephew, James Wesley Daniels, was also indicted for offenses
arising out of the same incident. The two men were tried jointly.
At trial, the Cocke County Director of 9-1-1, Kathy Cody, testified
that on May 31, 2004, two emergency calls were made regarding
the shooting, one from the residence of Lisa Mathis and another
from a neighboring home. Audiotapes of the calls were admitted
in evidence.
Lisa Mathis testified that she lived in a mobile home located at 115
Horn Way in Newport. Prior to the events of May 31, 2004, she
did not know either the [Petitioner] or co-defendant Daniels.
However, that evening while Mathis was at her house with the
homicide victim and Charles Adams, Daniels arrived uninvited,
came in the front door, looked at the homicide victim and said,
“We have a problem.” After picking up a baseball bat, Mathis told
Daniels to leave. As Daniels backed out the front door, he said,
“I’ll be back with something more than a stick.”
At approximately 10:15 p.m. that night, Daniels returned to
Mathis’s house, and the [Petitioner] was with him. At that time,
there were five people in the two-bedroom mobile home: Mathis
was in the kitchen and Charles Adams was in the living room,
while the victim was in a back bedroom with Michael Benson and
David Shults. Mathis saw that Daniels had a handgun when he got
out of his car, and she called 9-1-1 as he entered and walked past
her through the living room toward the back of the mobile home.
The [Petitioner]—who was armed with a rifle—followed Daniels
inside, pointed the rifle at Mathis’s head and said, “Drop the
phone.” The [Petitioner] then asked her “where the son of a bitch
was,” and she assumed he meant the victim. At that point, Mathis
became “hysterical”: she dropped the telephone, threw up her
hands, got on her knees and started screaming. The [Petitioner]
2
did not shoot at her, but he held the rifle “in her face” so close that
she “could have grabbed the barrel from where she was standing.”
They heard a gunshot from the rear of the house, and the
[Petitioner] ran to the bedroom where the victim was located.
Mathis then ran out of the house. As she fled to her closest
neighbor’s home, she heard a second gunshot, and testified that it
was “a different type shot.” When she arrived at her neighbor’s
she was still “hysterical” and screaming that there were “people in
[her] house with guns.” Her neighbor called 9-1-1.
The audiotape of Mathis’s initial 9-1-1 telephone call (placed from
her residence) was played for the jury. While listening the
recording, Mathis identified her own voice and the voice of
Michael Benson saying, “I just want to leave.” She also identified
the [Petitioner’s] voice demanding, “[W]here’s the son of a bitch
at?” On cross-examination, Mathis stated that she thought the four
men in her house that day had been drinking, but that she was “not
sure”; however, she did not see anyone at her house using cocaine
that day.
Michael Benson testified that he was at Mathis’s house on May 31,
2004. He arrived there “between 8:00 and 9:00 p.m. with David
Shults. At some point, Shults and the victim took Mathis to a store
where she purchased beer. After bringing her back to the house,
the two men again went out and purchased drugs. After they
returned, Benson went into a back bedroom with the victim, David
Shults and Charles Adams. Benson said they “were getting ready
to use drugs,” when Daniels entered the bedroom “with a pistol
and pointed it at the victim.” While Daniels was “waiving” the
pistol at the victim and yelling, Benson “hit the door a flying” and
ran outside. Benson passed the [Petitioner] in the living room on
his way out and said the [Petitioner] was holding a rifle. While
hiding behind a tree, Benson heard two gunshots. He then saw two
cars leave and confirmed that one car belonged to David Shults.
The second car was a Subaru, but Benson did not know to whom it
belonged.
Charles Adams testified that he knew the victim and that he had
known the [Petitioner] and Daniels most of his life. On May 31,
2004, Adams went to Mathis’s house with the victim. While they
were at the mobile home that evening, Daniels arrived, came inside
and told the victim that “they had a problem.” Mathis picked up a
baseball bat and told him to leave, and as he was leaving, Daniels
said “he’d be back with more than a baseball bat.”
According to Adams, after Daniels left he and Mathis watched
television in the living room and the victim went into a back
bedroom with two men Adams did not know. “A little later,”
3
Daniels came back to the house and the [Petitioner] was with him.
When he saw Daniels and the [Petitioner] “on the steps,” Adams
went into the back bedroom to warn the victim that “they had come
back.” Daniels came inside the bedroom first, and he was armed
with a pistol. “He shot it and when he shot it him and the victim
got into a quarrel and started wrestling.” The [Petitioner] then
came into the bedroom armed with an “assault rifle” outfitted with
“two banana clips taped together.” Adams testified that while in a
“wrestling hold” with the victim, Daniels “said shoot this S.O.B.
and the [Petitioner] shot him” with the rifle from a distance of
approximately four feet.
Daniels then pointed his pistol at Adams and “acted like he pulled
the trigger,” then he told the [Petitioner] to shoot Adams. The
[Petitioner] responded that he would not shoot Adams because
they were friends. As Daniels and the [Petitioner] left the
bedroom, Daniels said, “Say it was self defense.” Adams watched
the [Petitioner] and Daniels drive away in a Subaru. Asked
whether there was any doubt in his mind that [Petitioner] shot the
victim, Adams answered: “No, sir.”
Eryn Wilds testified that she was working at a “BP” gas station in
Newport on the day of the incident. Daniels came to the gas
station twice that day. On the second occasion, he arrived at
approximately 10:15 p.m. driving a Subaru and was acting “sort of
hyper.” There was another white male in the car with Daniels
whom Wilds could not identify.
Detective Derrick Woods of the Cocke County Sheriff’s
Department testified that he led the investigation of the homicide.
He arrived at Mathis’s home at approximately 11:00 p.m. on May
31, 2004, and saw that the victim was dead on the floor in a back
bedroom with a single bullet exit wound on the upper-right-side of
his chest and blood splatter on his face. The bullet entry wound
was on the lower-left-side of the victim’s back. Based on where
the body was and the location of a bullet hole in the bedroom wall,
Detective
Woods
opined
that
the
“shooter”
would have been standing in the doorway coming into the
bedroom. There was also a bullet hole that went “through the
mattress, through a pillow,” and through the side of the trailer.
Detective Woods informed that one cartridge casing from a rifle
bullet was found on the floor beside a night stand, and a handgun
cartridge was discovered on the bed. Detective Woods submitted
both cartridges to the Tennessee Bureau of Investigation Crime
Laboratory for analysis. The crime laboratory report confirmed
that the cartridge casing recovered from the bedroom floor was a
“7.62 by 39 mm caliber rifle cartridge” casing and that the
4
cartridge casing recovered from the bed was from a “40 caliber”
Smith and Wesson cartridge. No fingerprints were recovered from
either cartridge casing. Because both bullets fired in the bedroom
exited the trailer, neither was recovered. No firearms were
discovered at the crime scene, and the murder weapon was never
found. According to Detective Woods, the [Petitioner] and
Daniels turned themselves in to authorities the day after the
shooting.
The parties stipulated that the Tennessee Bureau of Investigation’s
examination of items removed from a 1985 Subaru “failed to
indicate the presence of blood.” Further, they stipulated that
analysis of a vitreous sample taken from the victim, as well as an
analysis of his blood and urine revealed that he had a blood alcohol
content between .19 and .25 percent when he died. Additionally,
the victim had marijuana and cocaine in his system.
Kim Fine testified that she was the victim’s girlfriend.
Approximately two and a half to three years ago before she dated
the victim, Fine had been Daniels’s girlfriend. She lived with
Daniels for eight months and explained that on “several
occasions,” Daniels would speak of the victim and say that if he
ever “ran into him one of the two of them would die.” The victim
had informed Fine as to the nature of the dispute between him and
Daniels, but this information was not disclosed during her
testimony.
Dr. Darinka Mileusnic-Polchan testified that she was a forensic
pathologist, an Assistant Professor of Pathology at the University
of Tennessee Medical Center and an Assistant Chief Medical
Examiner for Knox County. Testifying as an expert in forensic
pathology, she stated that she conducted an autopsy on the victim
and opined that his cause of death was “a single gunshot wound to
the back which perforated the left lung and tore the heart and
exited the body on the front. It was a through and through gunshot
wound of the back that involved the chest organs that caused
internal bleeding.” Dr. Mileusnic-Polchan also deduced that the
victim was shot from a close range while he was “standing up and
potentially slightly bent over.”
Neither the [Petitioner] nor Daniels testified, and no witnesses
were called by the defense.
After deliberations, the jury convicted the [Petitioner] of the first
degree murder of the victim and the aggravated assault of Mathis.
The trial court imposed a life sentence for his first degree murder
conviction because the State did not seek a sentence of life without
parole or the death penalty. Following a separate sentencing
5
hearing, the trial court sentenced the [Petitioner] as a Range II,
multiple offender to ten years for the aggravated assault conviction
and ordered the sentence to be served concurrently.
McGaha, 2008 WL 148943, at *1–4 (footnotes omitted).
III.
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).
A state court’s decision is “contrary to” federal law when it arrives at a conclusion
opposite to that reached by the Supreme Court on a question of law, or resolves a case differently
on a set of facts which cannot be distinguished materially from those upon which the precedent
was decided.
Williams v. Taylor, 529 U.S. 362, 413 (2000).
Under the “unreasonable
application” prong of § 2254(d)(1), the relevant inquiry is whether the state court decision
identifies the legal rule in the Supreme Court cases which govern the issue, but unreasonably
applies the principle to the particular facts of the case. Id. at 407. The habeas court is to
determine only whether the state court’s decision is objectively reasonable, not whether, in the
habeas court’s view, it is incorrect or wrong. Id. at 411.
The § 2254(d) standard is a hard standard to satisfy. Montgomery v. Bobby, 654 F.3d
668, 676 (6th Cir. 2011) (noting that Ҥ 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, findings of fact which are sustained by the record are entitled to a
6
presumption of correctness—a presumption which may be rebutted only by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
IV.
ANALYSIS
Petitioner’s § 2254 habeas corpus petition raises seven main grounds for relief: (1)
several instances of ineffective assistance of counsel; (2) that the trial court erred by failing to
grant a mistrial after members of the jury saw Petitioner enter the court in shackles; (3)
insufficient evidence to support the convictions; (4) that there was no proof of premeditation to
support the first degree murder verdict; (5) that the trial judge erred by failing to recuse himself
upon the challenge of the appearance of impropriety; (6) prosecutorial misconduct; and (7)
actual innocence.
In his answer, Respondent argues that Petitioner is not entitled to relief on one of his
ineffective assistance of counsel claims and on grounds six and seven because they are
procedurally barred [Doc. 6]. Respondent also argues that Petitioner is not entitled to relief on
his remaining claims because the state court decisions rejecting the claims on their merits are
entitled to deference under 28 U.S.C. § 2254 [Doc. 6].
The Court agrees with Respondent concerning Petitioner’s entitlement to habeas relief,
and for the reasons which follow, will DENY and DISMISS this case.
A.
Procedural Default
1.
Applicable Law
Under 28 U.S.C. § 2254(b), a federal court’s jurisdiction to hear a habeas claim is limited
to those cases in which a petitioner has exhausted all available state-court remedies. The statute
provides that:
7
(1)
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a state court shall
not be granted unless it appears that—
(A)
the applicant has exhausted the remedies available
in the courts of the State; or
(B)
(i) there is an absence of available State corrective
processes; or
(ii) circumstances exist that render such process
ineffective to protect the rights of the applicant.
(2)
An application for a writ of habeas corpus may be denied
on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State.
28 U.S.C. § 2254(b); see also Granberry v. Greer, 481 U.S. 129, 133–34 (1987); Rose v. Lundy,
455 U.S. 509, 519 (1982).
A petitioner must present each factual claim to the state court as a matter of federal law.
See Gray v. Netherland, 518 U.S. 152, 163 (1996). In essence, a claim sought to be vindicated in
a federal habeas proceeding must have been raised in the state courts so that the state courts have
the first opportunity to hear the claim. “Where a petitioner has not fully and fairly presented a
federal claim to the state’s highest court . . ., a federal court will not consider the merits of that
claim unless petitioner can show cause to excuse his failure to present the claims appropriately in
state court, and actual prejudice as a result.” Stanford v. Parker, 266 F.3d 442, 451 (6th Cir.
2001) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). Cause for a procedural default
depends on some “objective factor external to the defense” that interfered with the petitioner’s
efforts to comply with the procedural rule. Coleman, 501 U.S. at 753 (citing Murray v. Carrier,
477 U.S. 478, 488 (1986)).
2.
Discussion
Respondent argues that Petitioner failed to exhaust the following claims in state court: (1)
that his trial counsel was ineffective for failing to preserve the record and effectively appeal the
8
trial court’s refusal to recuse itself; and (2) that the state engaged in several instances of
prosecutorial misconduct.1
a.
Ineffective assistance of counsel for failing to preserve the
record and appeal issue of trial court’s recusal.
Petitioner argues that his trial counsel, Joann Sheldon, failed to properly preserve and
argue the issue of his trial judge’s impartiality, after the trial judge was accused of engaging in an
improper conversation with the victim’s family members by Petitioner’s co-defendant [Doc. 2].
Petitioner alleges that trial counsel was ineffective for failing to investigate and examine the trial
judge about the interaction with the victim’s family [Doc. 2]. Respondent correctly points out
that this claim was not presented to the state court and, therefore, it is procedurally defaulted
[Doc. 6].
Furthermore, the Court notes that Petitioner is not entitled relief on this claim under the
Martinez exception. In Martinez v. Ryan, 132 S. Ct. 1309 (2012), the Supreme Court created a
narrow exception to the general rule of Coleman that a habeas petitioner cannot use ineffective
assistance of collateral review counsel to excuse a procedural default. 501 U.S. at 756–57.
Under the Martinez exception, which was made applicable to Tennessee by Sutton v. Carpenter,
745 F.3d 787 (2014), a petitioner may establish cause to excuse a procedural default of an
ineffective assistance of trial counsel claim by showing that he received ineffective assistance by
post-conviction counsel. See Martinez, 132 S. Ct. at 1320. However, to be successful under
Martinez, a petitioner must show a substantial underlying claim of ineffective assistance of trial
counsel. Id. at 1318–19; see also Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013).
1
Respondent also asserts that Petitioner’s claim of actual innocence should be dismissed because it is
procedurally barred [Doc. 6]. However, as the Court has chosen to deny the claim based on other grounds, the Court
will address it separately.
9
Here, even under Martinez, Petitioner cannot show a substantial claim of ineffective
assistance of trial counsel because counsel cannot be ineffective for failing to preserve or appeal
a claim that she actually raised on appeal. The record indicates that Petitioner’s trial counsel
argued on appeal that the trial court’s failure to recuse itself after the court’s impartiality was
challenged was improper [Doc. 7-8, p. 24]. As such, the Court cannot find that Petitioner has
alleged sufficient cause and prejudice to overcome the procedural default of this claim.
Accordingly, Petitioner’s claim that he received ineffective assistance of counsel based on
counsel’s failure to preserve and appeal the issue of the trial court’s recusal will be dismissed as
procedurally barred from habeas review.
b.
Prosecutorial Misconduct.
Petitioner also argues that he is entitled to habeas relief because of several instances of
prosecutorial misconduct [Doc. 2]. Particularly, Petitioner argues that the prosecutor in his case
committed a Brady violation, knowingly used perjured testimony, mentioned evidence that was
not in the record, and failed to disclose information about promises of leniency given to
prosecution witnesses [Doc. 2]. Respondent again correctly points out that Petitioner failed to
raise these claims before the TCCA [Doc. 6]. As previously mentioned, a state prisoner must
exhaust all constitutional claims by fully and fairly presenting them in a state court, before a
federal court can consider them in a habeas proceeding. 28 U.S.C. § 2254(b)(1)(A), (C).
Petitioner has not done so here, nor has he alleged any cause and prejudice to excuse this
procedural default. As such, Petitioner’s claims of prosecutorial misconduct will be dismissed as
procedurally barred.
B.
Ineffective Assistance of Counsel
10
Petitioner claims that he received ineffective assistance of counsel from his trial attorney
with respect to counsel’s failure to ensure that he and his co-defendant received separate trials,
and counsel’s failure to interview witnesses and present defense theories [Doc. 2].
1.
Applicable Law
The Sixth Amendment provides 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
criminal defendant’s Sixth Amendment right to counsel necessarily implies the right to
“reasonably effective assistance” of counsel. See Strickland v. Washington, 466 U.S. 668, 687
(1984). Under the Strickland standard for proving ineffective assistance of counsel, a defendant
must meet a two-pronged test: (1) that counsel’s performance was deficient; and (2) that the
deficient performance prejudiced the defense. Id.
Proving deficient performance requires a “showing that counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed defendant by the Sixth
Amendment.” Id. The appropriate measure of attorney performance is “reasonableness under
prevailing professional norms.”
Id. at 688.
A defendant asserting a claim of ineffective
assistance of counsel must “identify the acts or omissions of counsel that are alleged to not 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). It is strongly presumed that
counsel’s conduct was within the wide range of reasonable professional assistance. Strickland,
466 U.S. at 689.
11
The second prong, prejudice, “requires showing that counsel’s errors were so serious as
to deprive the defendant of a fair trial, a trial whose result is unreliable.” Id. Here, Petitioner
must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceedings would have been different.” Moss v. United States, 323 F.3d 445, 454
(6th Cir. 2003) (quoting Strickland, 466 U.S. at 694) (internal quotation marks omitted).
Counsel is constitutionally ineffective only if a performance below professional standards caused
the defendant to lose what he “otherwise would have probably won.” United States v. Morrow,
977 F.2d 222, 229 (6th Cir. 1992).
2.
Discussion
Petitioner argued to the post-conviction trial court that his trial counsel was ineffective
for failing to move to sever his trial from that of his co-defendant, for failing to present an alibi
defense, for failing to present proof at sentencing, and for failing to present proof of his
intoxication.
McGaha, 2011 WL 2162987, at *6.
The TCCA, applying Strickland v.
Washington, concluded that Petitioner had not met his burden of proving deficient performance
or prejudice. Id. at *9–13. Thus, the task before the Court is to determine whether the state
court’s application of Strickland to the facts of Petitioner’s case was unreasonable.
a.
Failure to File Motion to Sever.
As his first instance of ineffective assistance, Petitioner contends that his trial counsel
failed to move to sever his trial from his co-defendant [Doc. 2]. Petitioner alleges that counsel’s
failure to move for a severance deprived him from a fair trial because he was unable to present
essential evidence due to the psychological and emotional burden of being tried with a family
member [Doc. 3]. According to Petitioner, counsel’s failure in this aspect was unreasonable.
12
A petitioner bears a heavy burden to show that he was denied a fair trial by the failure to
sever his trial from a co-defendant’s when both allegedly participated in the same offense. See
United States v. Horton, 847 F.2d 313, 317 (6th Cir. 1988); see also Richardson v. Marsh, 481
U.S. 200, 210 (1987) (noting that joint trials avoid inconsistent verdicts and the scandal and
inequity of such verdicts and also enable a more accurate assessment of relative culpability).
Under Tennessee law, a defendant is entitled to severance from other defendants if it is deemed
appropriate to promote a fair determination of the guilt or innocence of one or more defendants.
Tenn. R. Crim. P. 14(c)(2)(i). The decision of whether or not to grant a severance is solely
within the trial judge’s discretion. See Glinsey v. Parker, 491 F.2d 337, 343 (6th Cir. 1974).
When a petitioner challenges counsel’s failure to file a motion to sever, the petitioner
“must demonstrate that the outcome of his trial would have been different but for counsel’s
errors.” United States v. Walker, No. 96-2419, 2000 WL 353518, at *5 (6th Cir. Mar. 30, 2000).
Petitioner merely states that because he was not tried alone, “he was denied the right to introduce
evidence of a highly probative and exculpatory nature” [Doc. 2, p. 12]. Petitioner’s conclusory
statement here is not sufficient to show that he was prejudiced by counsel’s failure to file a
motion to sever the trial. Since Petitioner cannot show prejudice, the Court need not reach the
question of deficient performance. See Strickland, 466 U.S. at 697 (concluding that because both
the performance prong and prejudice prong must be satisfied, if a petitioner cannot satisfy one
prong, the other need not be examined). As such, the Court cannot find that the Petitioner is
entitled to relief on this claim because the state court’s determination of the facts before it was
not unreasonable.
b.
Failure to Interview Witnesses and Present Defense Theories.
13
Petitioner’s next claim of ineffective assistance of counsel alleges that his trial counsel
was ineffective for failing to interview witnesses and present viable defense theories [Doc. 2].
Particularly, Petitioner argues that counsel made no effort to interview and present three separate
witnesses that would have provided him with an alibi for the time of the shooting [Doc. 2].
According to Petitioner, counsel failed to interview the witnesses, failed to present an alibi
defense, advised Petitioner against taking the stand, and generally failed to present any piece of
evidence in Petitioner’s defense [Doc. 2].
Strickland imposes upon an attorney “the obligation to investigate all witnesses who may
have information concerning his or her client’s guilt or innocence.” Ramonez v. Berghuis, 490
F.3d 482, 487 (6th Cir. 2007) (citing Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005)). At the
post-conviction hearing, counsel testified that she did in fact talk to the witnesses Petitioner
references, and they had offered to testify in support of Petitioner’s alibi defense. McGaha, 2011
WL 2162987, at * 11. However, counsel stated that she thoroughly researched the timeline
surrounding the murder and determined that the witnesses’ testimony would not actually
constitute an alibi.
Id.
Furthermore, counsel testified that she did not believe that the
testimonies would be helpful to Petitioner; rather, she feared that the testimony would open the
door to Petitioner’s prior murder conviction. Id.
Here, Petitioner has not overcome the strong presumption that counsel’s conduct fell
within the wide range of reasonable professional assistance. Under Strickland, “[s]trategic
choices made after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable.” 466 U.S. at 690. Petitioner has failed to show that there was no
thorough investigation of the witnesses or viable defense theories in this case. See, e.g., Webb v.
Mitchell, 586 F.3d 383, 395 (6th Cir. 2009) (observing that the petitioner had failed to
14
“overcome the ‘strong presumption’ that his trial counsel conducted a reasonable investigation.”
(citation omitted)).
In fact, the testimony presented to the post-conviction court indicates
otherwise; counsel did talk to Petitioner’s alibi witness, and only after a thorough investigation
of the facts in connection with their testimony did she decide that it was not in Petitioner’s best
interest to present their testimony.
Accordingly, the Court cannot find that Petitioner is entitled to relief on this claim
because the state court’s decision was not an unreasonable determination of the facts in light of
the evidence presented to it.
C.
Failure to Cure Juror Prejudice
Petitioner next argues this the trial court erred in failing to declare a mistrial after
members of the jury saw him in shackles and handcuffs [Doc. 2]. Petitioner contends that
allowing members of the jury to see him in handcuffs and shackles “left an unreliable mark of
infamy in the minds of the jurors,” and violated his constitutional right to a fair and impartial
trial [Doc. 2].
1.
Applicable Law
“A principal ingredient of the due process clause is that every criminal defendant is
entitled to a fair and impartial trial.” Kennedy v. Cardwell, 487 F.2d 101, 104 (6th Cir. 1973)
(citing Massey v. Moore, 348 U.S. 105, 108 (1954)). For a defendant to receive a fair trial, “it
necessarily follows that a criminal defendant is entitled to the physical indicia of innocence.” Id.
(citing United States v. Samuel, 431 F.2d 610, 614 (4th Cir. 1970)). This right to be free from
prejudicial practices, however, is not absolute. See Holbrook v. Flynn, 475 U.S. 560, 568 (1986)
(finding that the presence of a large number of law enforcement officials did not offend the
petitioner’s constitutional rights); see also Illinois v. Allen, 397 U.S. 337, 344 (1970) (holding
15
that binding and gagging, while probative of negative feelings towards the defendant, may be the
most reasonable way to handle a disruptive defendant). On habeas review, a federal court is only
permitted to “look at the scene presented to the jurors and determine whether what they saw was
so inherently prejudicial as to pose an unacceptable threat to [petitioner’s] right to a fair trial.”
Holbrook, 475 U.S. at 572.
2.
Discussion
Here, the record indicates that when Petitioner was being brought into the courtroom on
the second day of trial, the officers inadvertently led him past a number of jury members while
Petitioner was still handcuffed. McGaha, 2008 WL 148943, at *7. However, when counsel for
Petitioner and Petitioner’s co-defendant brought this to the attention of the trial court, they told
the court that the court did not need to give curative instructions, but that they just wanted to
bring it to the court’s attention for future purposes. Id. at *8. The state court found that
Petitioner cannot now claim that the trial court erred in failing to declare a mistrial or provide a
curative instruction, after specifically telling the court not to administer an instruction to the jury.
Id. Even further, the state court found that Petitioner did not suffer any prejudice from the
sighting. Id. at *9.
The Court cannot find that the state court’s decision was an unreasonable application of
well-established federal law, or that the state court unreasonably determined the facts in light of
the evidence presented before it. There is no evidence from which the Court can conclude that
Petitioner was prejudiced by the brief sighting here. See, e.g., United States v. Chapman, 513
F.2d 1262 (6th Cir. 1975) (failing to find prejudice where the defendant was seen in handcuffs by
jurors only for a brief period); United States v. Crane, 499 F.2d 1385 (6th Cir. 1974) (same).
Accordingly, the Court finds that Petitioner is not entitled to habeas relief on this claim.
16
D.
Sufficiency of the Evidence2
Petitioner’s next two claims assert that there was insufficient evidence introduced at trial
to support his convictions, and that the trial court erred by finding that there was sufficient proof
of premeditation to support the first degree murder verdict [Doc. 2]. In support of this claim,
Petitioner argues that the state did not introduce any fingerprints, ballistic, or DNA evidence that
could connect him to the murder [Doc. 2].
1.
Applicable Law
The United States Supreme Court’s decision in Jackson v. Virginia, 443 U.S. 307 (1979),
provides the controlling rule for resolving claims of insufficient evidence. See Gall v. Parker,
231 F.3d 265, 287–88 (6th Cir. 2000) (identifying Jackson as the governing precedent for claims
of insufficient evidence), superseded by statute on other grounds as recognized by Parker v.
Matthews, 132 S. Ct. 2148 (2012). In Jackson, the Supreme Court held that evidence, when
viewed in the light most favorable to the prosecution, is sufficient if any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. 443 U.S. at
319.
Resolving conflicts in testimony, weighing the evidence, and drawing reasonable
inferences from the facts are all matters which lie within the province of the trier of fact. Id.; see
also Cavazos v. Smith, 132 S. Ct. 2, 6 (2011) (“[A] reviewing court ‘faced with a record of
historical facts that supports conflicting inferences must presume—even if it does not
affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of
the prosecution, and must defer to that resolution.’” (quoting Jackson, 443 U.S. at 326)).
A habeas court reviewing an insufficient evidence claim must apply two levels of
deference. Parker v. Renico, 506 F.3d 444, 448 (6th Cir. 2007). Under Jackson, deference is
2
Petitioner presents his claims that there was insufficient evidence to support his convictions and that there
was no proof of premeditation as two separate claims; however, the state court addressed both claims together. The
Court will do the same here.
17
owned to the fact finder’s verdict, “with explicit reference to the substantive elements of the
criminal offense as defined by state law.” Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008)
(citing Jackson, 443 U.S. at 324 n.16). Under AEDPA, deference is also owed to the state
court’s consideration of the trier-of-fact’s verdict. Smith, 132 S. Ct. at 6 (noting the double
deference owed “to state court decisions required by § 2254(d)” and “to the state court’s already
deferential review.”). Hence, a petitioner bringing a claim of insufficient evidence “bears a
heavy burden.” United States v. Vannerson, 786 F.2d 221, 225 (6th Cir. 1986).
2.
Discussion
In its opinion, the TCCA discussed the definition of the offenses of first degree murder
and aggravated assault in Tennessee. Citing to Tenn. Code Ann. § 39-13-102(a)(1)(B), the
TCCA stated: “The statutory definition of aggravated assault relevant to the instant case is the
intentional or knowing commission of an assault within the meaning of Tennessee Code
Annotated Section 39-13-101 while using or displaying a deadly weapon.” McGaha, 2008 WL
148943, at *5. The court went on to define a deadly weapon as including a firearm, and stated
that a firearm is “defined as ‘any weapon designed, made or adapted to expel a projectile by the
action of an explosive or any device readily convertible to that use.’” Id. (quoting Tenn. Code
Ann. § 39-11-106(a)(11)). The TCCA next noted that “[f]irst degree murder, as relevant [here],
is defined as a premeditated and intentional killing of another.” Id. (citing Tenn. Code Ann. §
34-13-202(a)(1)).
The TCCA, citing to Jackson v. Virginia, stated that where a defendant challenges the
sufficiency of the evidence, the court must reject the challenge if, after considering the evidence
in the light most favorable to the prosecution, the court determines that any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. McGaha, 2008
18
WL 148943, at * 4. Thus, the Court must now determine whether the state court’s application of
Jackson to the facts of Petitioner’s case was unreasonable.
Summarizing the proof which sustained Petitioner’s aggravated assault conviction, the
TCCA pointed to evidence showing that Petitioner went into Lisa Mathis’s home, and while she
was calling 9-1-1, he pointed his rifle at her head, holding it so close to her face that she could
have reached out and grabbed the barrel, and told her to drop the telephone. The court also noted
that witness testimony indicated that the Petitioner entered the bedroom in Lisa Mathis’s home
with an assault rifle after his co-defendant had fired a first shot, and while his co-defendant was
struggling with the victim, Petitioner shot the victim with his rifle. The court pointed to evidence
that showed that a single handgun cartridge casing was discovered on the bed and one rifle
cartridge casing was discovered on the floor, along with bullet holes in the mattress and in the
wall of the bedroom. As such, the court concluded that the evidence, when viewed in the light
most favorable to the state, was sufficient to sustain Petitioner’s aggravated assault and first
degree murder convictions.
With regard to Petitioner’s argument that there was no evidence to support premeditation,
the court pointed to testimony of a witness that stated that Petitioner shot the victim at the order
of his co-defendant, and when Petitioner’s co-defendant asked Petitioner to also shoot the
witness, Petitioner refused. The court stated that this indicates that Petitioner was calm enough
immediately after the killing to make the decision not to shoot another person. The court also
noted that Petitioner did not render aid to the victim. Noting that premeditation is a question for
the jury, and that it was required to view the evidence in the light most favorable to the
prosecution, the court concluded that any rational trier of fact could have found premeditation
beyond a reasonable doubt.
19
Here, the Court cannot find that Petitioner has presented any evidence to indicate that the
state court unreasonably determined that the proof presented in Petitioner’s case was sufficient to
support the convictions.
The state court’s application of the Jackson standard was not
unreasonable nor was its decision based on an unreasonable factual determination. As such, the
Court finds that Petitioner is not entitled to relief on these claims.
E.
Trial Court’s Failure to Recuse Itself
Petitioner next alleges that the trial court erred in failing to recuse itself after his codefendant’s father accused the court of improperly interacting with the victim’s family members
[Doc. 2]. Petitioner argues that the trial court should have recused itself because the court was
unquestionably prejudiced against him and his co-defendant, and that but for the court’s
partiality, he “would have received instructions on lesser included offenses, as well as had expert
witnesses provided by the [c]ourt to help provide a defense” [Doc. 2].
1.
Applicable Law
Where a procedural default prevents a petitioner from raising a claim, a court in the Sixth
Circuit must apply the following four-factor analysis: (1) whether there is a procedural rule
which applied to a petitioner’s claim and whether a petitioner complied with the rule; (2)
whether the procedural rule was actually enforced against a petitioner; (3) whether the rule is an
adequate and independent state ground sufficient to block habeas review; and (4) whether a
petitioner can demonstrate cause for his failure to comply with the rule, and prejudice resulting
from the alleged constitutional violation. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.
1986); see also Beuke v. Houk, 537 F.3d 618, 630 (6th Cir. 2008). A district court may, sua
sponte, raise a petitioner’s procedural default, even if the state failed to raise the defense. See
20
Day v. McDonough, 547 U.S. 198, 209 (2006); Sowell v. Bradshaw, 372 F.3d 821, 830 (6th Cir.
2004).
2.
Discussion
In Tennessee, a defendant is required to prepare a record that conveys a fair, accurate,
and complete account of what occurred with respect to the issues which form the basis of his
appeal. Tenn. R. App. P. 24(b). If the record contains nothing to support a claim of error, then
that alleged error will not be considered on appeal. Jackson v. State, 539 S.W.3d 337 (Tenn.
Crim. App. 1976); State v. Meeks, 779 S.W.2d 394 (Tenn. Crim. App. 1988) (finding that the
failure to provide a transcript of a sentencing hearing constitutes a waiver of the sentencing
issue). Here, the TCCA stated that “The [Petitioner] has waived this issue because no transcript
of [his co-defendant’s] sentencing hearing is included in the record before this [c]ourt. . . .
Without a complete and proper record, this [c]ourt is precluded from considering the issue.”
McGaha, 2008 WL 148943, at * 7 (citations omitted). The state court’s application of the state
procedural rule to bar consideration of the claim operates as a procedural default.
As noted, federal review of a procedurally defaulted claim is precluded, unless the habeas
petitioner can show cause to excuse his failure to comply with the state procedural rule, and
actual prejudice resulting from the alleged constitutional violation. Coleman v. Thompson, 501
U.S. 722, 732 (1991). Cause “requires a showing that an ‘objective factor external to the defense
impeded counsel’s efforts to comply’ with the state procedural rule.” Franklin v. Anderson, 434
F.3d 412, 417 (6th Cir. 2006) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). A
petitioner demonstrates prejudice by establishing that his trial was infected with constitutional
error, and that the constitutional error worked to the petitioner’s actual and substantial
21
disadvantage. Franklin, 464 F.3d at 417; see also United States v. Frady, 56 U.S. 152, 170
(1982).
Petitioner does not directly allege cause and prejudice, but instead argues that his counsel
was ineffective for failing to obtain a transcript of his co-defendant’s sentencing proceedings
which would have reflected the confrontation between the trial court and his co-defendant’s
father [Doc. 2]. Ineffective assistance of appellate counsel may serve as cause for procedural
default, but only if counsel is constitutionally ineffective under the Strickland standard. Murray,
477 U.S. at 488–89. However, before ineffective assistance of counsel can be cause, the issue of
ineffective assistance of counsel must itself have been exhausted in the state courts.
See
Edwards v. Carpenter, 529 U.S. 446, 450–51 (2000) (“A procedurally defaulted ineffectiveassistance-of-counsel claim can serve as cause to excuse the procedural default of another habeas
claim only if the habeas petitioner can satisfy the ‘cause and prejudice’ standard with respect to
the ineffective-assistance claim itself.’).
Here, the Court has previously found that Petitioner procedurally defaulted on this
ineffective assistance of counsel claim by failing to raise it before the TCCA, and that Petitioner
failed to allege cause and prejudice to excuse the default. As such, the Court cannot find that this
defaulted claim of ineffective assistance is sufficient to excuse Petitioner’s default of this habeas
claim. Having failed to show cause and prejudice, Petitioner’s claim that the trial court erred in
failing to recuse itself is barred by his procedural default, and cannot be reviewed by this Court.
F.
Actual Innocence
Petitioner’s final claim is that he is actually innocent of the crimes for which he was
convicted, and that the Court must grant an evidentiary hearing “to resolve the controversy
surrounding the factual questions of whether or not the Petitioner’s actual innocence claim is
22
meritorious or not” [Doc. 2]. Particularly, Petitioner alleges that a telephone conversation that he
had with a number of family members indicates that it was physically impossible for him to have
committed the crimes of which he was convicted of [Doc. 2].
Respondent argues that this claim should be dismissed because a freestanding actual
innocence claim does not raise a basis for federal habeas relief [Doc. 6]. The Court agrees.
“Claims of actual innocence based on newly discovered evidence have never been held to state a
ground for federal habeas relief absent an independent constitutional violation in the underlying
state criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 400 (1993) (citing Townsend v.
Sain, 372 U.S. 293, 317 (1963)). Here, Petitioner’s claim of actual innocence is not cognizable
on habeas relief and, as such, must be dismissed.3
V.
CONCLUSION
For the above mentioned reasons, the Court finds that none of Petitioner’s claims warrant
issuance of a writ. Therefore, Petitioner’s petition for a writ of habeas corpus [Doc. 2] will be
DENIED and DISMISSED.
VI.
CERTIFICATE OF APPEALABILITY
The Court must 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 a claim has been dismissed on the merits, a substantial showing is
3
To the extent that Petitioner argues that this claim of actual innocence should act as cause to excuse the
procedural default of any of his claims, the Court finds that this argument is without merit as Petitioner has failed to
produce any new and reliable evidence to support this claim. The affidavits submitted by Petitioner merely allege
that several of his family members would have testified on his behalf, had they been called to do so [Doc. 8]. These
affidavits do not rise to the level of credibility required for such a claim under Schlup v. Delo, 513 U.S. 298, 324
(1995) (“To be credible, such a claim requires petitioner to support his allegations of constitutional error with new
reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at trial.”).
23
made if reasonable jurists could conclude the issues raised are adequate to deserve further
review. See Miller-El v. Cockrell, 537 U.S. 322, 327, 336 (2003); Slack v. McDaniel, 529 U.S.
473, 484 (2000). When a claim has been dismissed on procedural grounds, a substantial showing
is demonstrated when it is shown that reasonable jurists would debate whether a valid claim has
been stated and whether the court’s procedural ruling is correct. Slack, 529 U.S. at 484.
After reviewing each of Petitioner’s claims, the Court finds that reasonable jurists could
not conclude that Petitioner’s claims are adequate to deserve further review, nor would
reasonable jurists debate the correctness of the Court’s procedural ruling. As such, because
Petitioner has failed to make a substantial showing of the denial of a constitutional right, a COA
will not issue.
ENTER:
s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE
24
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?