White v. State of Tennessee et al

Filing 57

MEMORANDUM OPINION, For the reasons set forth herein, the Court finds that none of Petitioner's claims warrant the issuance of a writ of habeas corpus. Accordingly, Petitioner's second amended § 2254 petition [Doc. 12 ] and second motion to take judicial notice and grant habeas corpus petition [Doc. 56] will be DENIED and this action will be DISMISSED WITH PREJUDICE...Because Petitioner has failed to make a substantial showing of the denial of a constitutional right, a COA SHALL NOT ISSUE. Signed by District Judge J Ronnie Greer on 9/29/2017. (Copy of Memorandum Opinion mailed to Danielle M. White)(JCK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
DANIELLE M. WHITE,

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Petitioner,
v.
STATE OF TENNESSEE et al.,
Respondent.

No. 2:14-CV-116-JRG-MCLC

MEMORANDUM OPINION
Presently before the Court is a second amended petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 [Doc. 12] filed pro se by Petitioner Danielle M. White challenging her 2010
Tennessee state court conviction for two counts of aggravated assault. 1 Respondent has filed an
answer to the petition [Doc. 33] and a copy of the state court record [Doc. 34]. Petitioner has filed
a reply to the answer [Doc. 44], along with a “second motion to take judicial notice and motion to
grant habeas corpus petition” [Doc. 56]. For the following reasons, Petitioner’s second amended
§ 2254 petition and second motion to take judicial notice and grant habeas corpus petition will be
DENIED and this action will be DISMISSED WITH PREJUDICE.
I.

PROCEDURAL HISTORY

Section 2254(a) requires that an applicant be “in custody” at the time the writ is filed.
Carafas v. LaVallee, 391 U.S. 234, 238 (1968). Petitioners who are on probation or parole at the
time the petition is filed meet the “in custody” requirement. See, e.g., Jones v. Cunningham, 371
U.S. 236, 242 (1963) (parolee met “in custody” requirement because release was not
unconditional). In this case, Petitioner was on probation at the time the petition was filed and
therefore meets the “in custody” requirement, even though her probationary sentence was set to
expire in July of 2017. See DePompei v. Ohio Adult Parole Authority, 999 F.2d 138, 140 (6th Cir.
1993) (petitioner’s unconditional release from parole after the petition had been filed did not
disturb the court’s jurisdiction).
1

Petitioner was indicted by a grand jury in Greene County, Tennessee, on two counts of
aggravated assault in violation of Tennessee Code Annotated § 39-13-102(a)(1)(B) [Doc. 34
Attachment 1 at 1–2]. Following a two-day trial, at which Petitioner represented herself, a jury
returned a verdict of guilty on both counts [Id. at 71–72]. The trial court sentenced Petitioner to
concurrent sentences of three years and six months with four months’ incarceration [Id. at 84–85].
Petitioner, through retained counsel, filed a motion for new trial [Id. at 87–90] and a second
amended motion for new trial [Id. at 99–104] which together asserted 71 errors. Following a
hearing, Petitioner’s request for a new trial was denied [Id. at 105].
Petitioner appealed her conviction and sentence to the Tennessee Court of Criminal
Appeals (“TCCA”) raising seven issues: (1) the trial court erred in failing to appoint counsel and
in allowing her to represent herself; (2) the trial judge erred in failing to recuse himself and denying
her a fair trial; (3) the grand jury foreman was not selected constitutionally because there was a
systematic exclusion based upon gender, race, and ethnicity; (4) the indictment was invalid
because no grand jury foreman was appointed; (5) the trial court erred in using a jury selection
process that was not in accord with the relevant statute; (6) the trial court erred in denying the
motion to suppress; and (7) there was prosecutorial misconduct when the assistant district attorney
referred to Petitioner’s invocation of her right to counsel [Doc. 34 Attachment 19]. The TCCA
affirmed Petitioner’s conviction and sentence and Petitioner’s application for permission to appeal
was denied by the Tennessee Supreme Court. State v. White, No. E2011-01817-CCA-R3-CD,
2013 WL 1788535 (Tenn. Crim. App. April 25, 2013) perm. app. denied (Tenn. Sept. 10, 2013).
Petitioner later filed a pro se petition for a writ of certiorari which the United States
Supreme Court denied. White v. Tennessee, 134 S. Ct. 2701 (June 2, 2014). Petitioner did not seek
post-conviction relief in the Tennessee state courts and her time to do so has expired. See
2

Tennessee Code Annotated § 40-30-102(a) and (b); Seals v. State, 23 S.W.3d 272, 276 (Tenn.
2000).
II.

FACTUAL BACKGROUND
Petitioner’s “crimes relate to her shooting at a utility company's contracted work crew as

they sprayed herbicide on the right-of-way on her property” on July 27, 2009. White, 2013 WL
1788535, at *1. As an initial matter, the decision of the TCCA affirming Petitioner’s conviction
and sentence sets forth the circumstances relating to Petitioner’s self-representation at trial as
follows:
The Defendant represented herself through the trial proceedings, despite the trial
court's urging her to seek counsel. The Defendant claimed she could not afford
counsel but refused to complete an affidavit of indigency, although the court
repeatedly urged her to do so. The court released $10,000 of the Defendant's cash
bond for her use in employing counsel, but she was unable to find counsel who
agreed with her interpretation of the Constitution and did not retain an attorney.
Shortly before the trial, the court appointed the public defender as advisory counsel.
After the trial, the Defendant retained counsel, who represented her at the
sentencing hearing and the motion for a new trial and who represent her in this
appeal.
Id.
The opinion of the TCCA proceeds to a lengthy summary of the evidence presented at
Petitioner’s trial. Id., at *1–11. In pertinent part, the testimony of Paul Pridgen, one of the victims,
was summarized as follows:
Mr. Pridgen testified that the crew arrived at the Defendant's address around 7:10
p.m. and that it was daylight. He said that they had three trucks and that the crew
consisted of four men with backpacks and a crew leader. He said David Caldwell,
the application manager with Helena Chemical, Mike Boles, an employee of
another chemical treatment company, and he were also present. He said that to his
knowledge, the Defendant's address was not on the list of property that was not to
be treated. He said that neither the Defendant nor her husband ever approached the
crew on July 27 and said they did not want the property treated and that the crew
should leave. He said that the Defendant's husband approached the crew leader and
asked what they were doing, that the crew leader stated they were applying
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herbicide, and that the Defendant's husband walked away without saying anything.
He said he was standing by the crew leader and heard the conversation. He said
the crew progressed through less than three feet of dense vegetation when he saw
movement on a ridge about seventy-five yards away and heard a woman's voice
say, “You can't spray no herbicide on my d–––property.” He looked up and saw
the woman with a rifle. He said the woman leveled a gun at them and fired a shot.
He heard the sound of rifle fire and of a shot whizzing by their heads. He said the
bullet was close and scared him for his own safety and that of the crew. He stated
that there was no question they were in imminent danger and that they left the
property as quickly as possible. Mr. Caldwell called 9–1–1. He said that they
regrouped at the bottom of a hill and that several Sheriff's deputies responded
quickly. He drew and explained a diagram of the scene. He identified a rifle as
appearing to be the same one he saw that day. He positively identified the
Defendant as the woman he saw that day.
Id., at *2.
The testimony of the other victim, David Caldwell, was summarized by the TCCA as
follows:
[Caldwell] said that they were working around the Defendant's address and that as
the work crew began applying herbicide to the right-of-way, a man came down the
driveway and asked what they were doing. He said that the crew leader answered
and that the man walked away without speaking. He said they continued working
and saw a woman come to the top of the hill near the house. He said she was about
seventy-five yards away. He said she asked what they were doing, and within
twenty seconds, she lifted a rifle and fired a shot over their heads. He said that he
had been walking toward the Defendant when he saw the gun and that he told the
crew they had to leave when she fired. He said that the woman said, “Consider
yourself warned,” and that he replied, “We are gone.” He said he called the police
to report the shooting as they drove away. He identified the Defendant as the person
who shot at him.
Id., at *3.
After hearing testimony from a number of other State and defense witnesses as detailed in
the TCCA opinion, the jury found Petitioner guilty of aggravated assault of Pridgen and Caldwell.
Id., at *11. To the extent additional facts and evidence as outlined by the TCCA are relevant to
any claim raised by Petitioner in her § 2254 petition, they will be addressed below in the analysis
of that specific claim.
4

III.

STANDARD OF REVIEW
A state prisoner is entitled to habeas corpus relief “only on the ground that he is in custody

in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The
Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, which amended § 2254, sets
forth “an independent, high standard to be met before a federal court may issue a writ of habeas
corpus to set aside state-court rulings.” Uttecht v. Brown, 551 U.S. 1, 10 (2007). By this standard,
when a state court adjudicates a claim on the merits, habeas relief is available only if the
adjudication of that claim “(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).
A state court decision is “contrary to” clearly established federal law if the state court
arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if
the state court decides a case differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court's ruling is an
“unreasonable application of” clearly established federal law if the state court identifies the correct
governing legal principle from Supreme Court precedent but unreasonably applies it to the facts
of the particular state prisoner's 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.
Under the AEDPA, a habeas petitioner must “‘show that the state court's ruling on the
claim being presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
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disagreement.’” Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (quoting Harrington v. Richter,
562 U.S. 86, 103 (2011)). This standard is “difficult to meet,” “highly deferential,” and “demands
that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170,
181 (2011) (quoting Harrington, 562 U.S. at 102; Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).
IV.

ANALYSIS
Petitioner filed her initial § 2254 petition on April 9, 2014 [Doc. 1], then filed an amended

§ 2254 petition on June 25, 2014 [Doc. 8]. Noting several deficiencies in that amended petition,
the Court directed the Clerk to send Petitioner a blank preprinted form on which to file her § 2254
petition [Doc. 9], and Petitioner subsequently filed the pending second amended petition [Doc.
12].
Like her original and first amended petitions, however, Petitioner’s second amended §
2254 petition was not submitted on the standard form appended to the Rules Governing Section
2254 cases and the arguments in support of her claims are incorporated into the petition itself rather
than in a separate memorandum or brief. This convoluted drafting style makes it difficult to
ascertain the precise nature of her constitutional claims, or even to determine the exact number. In
the answer [Doc. 33], Respondent lists 15 distinct grounds for relief raised in the 57 numbered
paragraphs of the second amended petition, while the Court’s review indicates there may be as
many as 22:
1.

Defective indictment [Doc. 12 at ¶ 17];

2.

Unconstitutional exclusion of women from the grand jury process [Doc. 12 at ¶ 18];

3.

Failure of trial court to hold a hearing or rule on 11 motions [Doc. 12 at ¶ 19];

4.

Denial of right to counsel [Doc. 12 at ¶ 22];

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5.
Failure of trial court to dismiss case because Petitioner had a right to defend herself
and her property [Doc. 12 at ¶ 24];
6.
Denial of Petitioner’s constitutional rights “under Article III” by the State of
Tennessee [Doc. 12 at ¶ 25];
7.
Withholding of information by State of Tennessee’s “pesticide investigators”
regarding pesticide contamination [Doc. 12 at ¶ 26];
8.
Failure of State of Tennessee and the Environmental Protection Agency to
prosecute Helena Chemical Company, Greeneville Light and Power and “S.F.E” [Doc. 12 at ¶ 27];
9.
at ¶ 28];

Denial of First Amendment right to associate with “persons of ill repute” [Doc. 12

10.
Denial of right to protect her property and the right to life, liberty and the pursuit
of happiness [Doc. 12 at ¶ 29];
11.
Failure to prove beyond a reasonable doubt that a crime was committed [Doc. 12
at ¶¶ 32, 37];
12.
Denial of Fourth Amendment rights when gun was seized without a warrant [Doc.
12 at ¶¶ 32, 36];
13.
Failure of State of Tennessee to “appear” at trial and failure to prove that Petitioner
“appeared” [Doc. 12 at ¶ 33];
14.

State of Tennessee lacks jurisdiction over Petitioner [Doc. 12 at ¶¶ 42, 53–54];

15.
Denial of due process when the United States Supreme Court denied her petition
for writ of certiorari without a hearing [Doc. 12 at ¶ 44];
16.

Discrimination against women by State of Tennessee and its officials [Doc. 12 at ¶

17.
12 at ¶ 46];

Denial of equal protection because probationers not treated same as parolees [Doc.

45];

18.
Denial of due process by being denied access to law library and legal documents
[Doc. 12 at ¶ 47–50];
19.

Failure of courts to swear on the Bible [Doc. 12 at ¶ 51];

20.
Violation of Article III because Greene County Criminal Court was not ordained
and established by Congress [Doc. 12 at ¶ 52];
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21.
62]; and,
22.

Denial of Second Amendment right to fire gun on her own property [Doc. 12 at ¶

Denial of right to compulsory process for obtaining witnesses [Doc. 12 at ¶ 64].

In addition, Petitioner has asked that the 71 errors raised in her motion for new trial, as
well as the issues raised in her appellate brief to the TCCA, also be added to and included in her
pending § 2254 petition [Doc. 12 at ¶¶ 15–16].
For the reasons set forth below, the bulk of the claims Petitioner now is attempting to assert
easily may be dismissed as Petitioner did not exhaust them in state court. What remains are the
seven claims raised by Petitioner to the TCCA on direct appeal. As will be shown, of those seven
claims, three fail to state cognizable claims under § 2254 and three have been procedurally
defaulted, leaving but one claim that was adjudicated on the merits in the TCCA for the Court to
address on habeas review.
A.

UNEXHAUSTED CLAIMS

Before a federal court may review a federal claim raised in a habeas petition, it must first
determine whether the petitioner has exhausted the remedies available to her in state court. See 28
U.S.C. § 2254(b)(1). If a federal habeas claim has not been presented to a state court for
adjudication, then it is unexhausted and may not properly serve as the basis of a federal habeas
petition. See Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
The exhaustion “requirement is satisfied when the highest court in the state in which the
petitioner was convicted has been given a full and fair opportunity to rule on the petitioner's
claims.” Wilson v. Mitchell, 498 F.3d 491, 498–99 (6th Cir. 2007) (quoting Lott v. Coyle, 261 F.3d
594, 608 (6th Cir. 2001)). Under Tennessee Supreme Court Rule 39, a Tennessee prisoner

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exhausts a claim by raising it before the TCCA. See Adams v. Holland, 330 F.3d 398, 402 (6th
Cir. 2003).
A federal court will not review claims that were not entertained by the state court due to
the petitioner's failure to (1) raise those claims in the state courts while state remedies were
available, or (2) comply with a state procedural rule that prevented the state courts from reaching
the merits of the claims. Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir. 2006).
Here, most of the claims that Petitioner attempts to assert never were raised properly in
state court and therefore are unexhausted. Of the 22 identifiable claims set forth in Petitioner’s
second amended § 2254 petition, only 4 were exhausted by being fully and fairly presented to the
TCCA on direct review: the indictment was defective (claim 1); the grand jury process
unconstitutionally excludes women (claim 2); the denial of Petitioner’s right to counsel (claim 4);
and the denial of Petitioner’s Fourth Amendment rights when the gun was seized without a warrant
(claim 12).
Because Petitioner never presented claims 3, 5–11, or 13–22 to the TCCA on direct appeal
from her judgment of conviction those claims are unexhausted and not reviewable by the Court
under § 2254. Likewise, any of the 71 asserted errors alleged by Petitioner in her motion for new
trial and amended motion for new trial which were not pursued on direct appeal have not been
exhausted. Moreover, Petitioner is now precluded from raising any of those claims in a state postconviction proceeding as the time for seeking such relief long since has passed. Tennessee Code
Annotated § 40-30-102(a) and (b); Seals v. State, 23 S.W.3d 272, 276 (Tenn. 2000).
A petitioner who fails to raise her federal claim in the state courts and who is now barred
by a state procedural rule from returning with the claim to those courts has committed a procedural
default. See Coleman v. Thompson, 501 U.S. 722, 732 (1991). A procedural default forecloses
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federal habeas review, unless the petitioner can show cause to excuse the failure to comply with
the state procedural rule and actual prejudice resulting from the alleged constitutional violation.
Id. at 750.
Here, Petitioner has asserted no cause for not raising any of the foregoing issues on direct
appeal, and the only “cause” she asserts for not filing a post-conviction petition in the state court
is that she does not recognize the State of Tennessee as having jurisdiction over her [Doc. 12 at ¶
10]. Nor has Petitioner asserted, nor could she establish, prejudice arising from the procedural
default of any of her asserted claims, as the majority of those claims are frivolous, non-cognizable
in a habeas corpus proceeding 2 or otherwise meritless.
Moreover, Petitioner cannot establish “actual innocence” as an exception to the procedural
default rule. The Supreme Court has held that “in an extraordinary case, where a constitutional
violation has probably resulted in the conviction of one who is actually innocent, a federal habeas
court may grant the writ even in the absence of a showing of cause for the procedural default.”
Murray v. Carrier, 477 U.S. 478, 496 (1986). However, “actual innocence” is an extremely narrow
exception, and “claims of actual innocence are rarely successful.” Schlup v. Delo, 513 U.S. 298,
321 (1995). This is not an extraordinary case.
Accordingly, because Petitioner failed to exhaust claims 3, 5–11, and 13–22 by fully and
fairly presenting them to the state court, and she now is precluded from doing so, those claims
have been procedurally defaulted.

Moreover, since Petitioner has established neither cause or

A number of the claims that Petitioner attempts to assert in her second amended § 2254
petition also were raised and rejected by the Court in three related cases that Petitioner brought
pursuant to 42 U.S.C. § 1983 at Civil Case Nos. 2:14-CV-115, 2:14-CV-117 and 2:14-CV-118.
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2

prejudice to excuse her procedural default of those claims, nor has she established her actual
innocence, claims 3, 5–11, and 13–22 will be DISMISSED.
B.

CLAIMS RAISED ON DIRECT APPEAL
1.

NON-COGNIZABLE CLAIMS

Petitioner argued on direct appeal that the trial judge erred in refusing to recuse himself
under the Tennessee Code of Judicial Conduct, and that the trial court erred in using a jury selection
process that was not in accord with the relevant Tennessee statute [Doc. 34 Attachment 19]. The
TCCA analyzed and denied both of these claims under Tennessee state law. White, 2013 WL
1788535, at *14–19. Although Petitioner did not specifically assert these two grounds for relief
in her second amended § 2254 petition, she did request that the arguments raised in her appellate
brief to the TCCA be “included” as grounds in her pending petition [Doc. 12 at ¶ 16]. Because
Petitioner exhausted these two claims, the court will permit her to include them in her pending
petition.
However, it is well-settled that “it is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991).
Rather, in conducting habeas review, “a federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States.” Id. at 68. Accordingly, “federal
habeas corpus relief does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990).
Here, Petitioner’s claims that the trial judge violated the Tennessee Code of Judicial
Conduct in not recusing himself and that the trial court violated a Tennessee statute relating to the
jury selection process raise questions solely of state law and that previously were analyzed by the
TCCA under Tennessee law. It is not this Court’s province to re-examine these state-law

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questions. Estelle, 502 at 67–68. Accordingly, to the extent Petitioner is attempting to raise these
claims in habeas, they will be DISMISSED.
Petitioner’s twelfth habeas claim set forth in her second amended § 2254 petition asserts a
Fourth Amendment violation arising from the warrantless seizure of her rifle [Doc. 12 at ¶ 32, 36].
Petitioner raised this issue on direct appeal and argued further that the trial court erred in admitting
the rifle as evidence at her trial [Doc. 34 Attachment 19]. The TCCA agreed that the warrantless
seizure of the rifle violated the Fourth Amendment and determined that it should have been
suppressed. White, 2013 WL 1788535, at *20–23. But, because the rifle “was not significant to
the State’s case,” the TCCA concluded that “its admission into evidence was harmless beyond a
reasonable doubt.” Id., at *23.
The Fourth Amendment prohibits “unreasonable searches and seizures.” U.S. Const.
amend. IV.

However, “[b]ecause questions regarding the admissibility of otherwise relevant

evidence seldom touch upon the “basic justice” of a conviction, the Supreme Court bars Fourth
Amendment claims from habeas review.” Northrop v. Trippett, 265 F.3d 372, 378 (6th Cir. 2001).
Thus, “where the State has provided an opportunity for full and fair litigation of a Fourth
Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground
that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Stone
v. Powell, 428 U.S. 465, 494 (1976).
Here, Petitioner’s Fourth Amendment claim was fairly and fully litigated in the TCCA.
Accordingly, her claim that the rifle was unconstitutionally seized without a warrant and was
improperly admitted into evidence is not cognizable in a federal habeas proceeding and Petitioner’s
Fourth Amendment claim therefore will be DISMISSED.
2.

PROCEDURALLY DEFAULTED CLAIMS
12

Petitioner’s first habeas claim asserted in her second amended § 2254 petition alleges that
the indictment was defective because it was signed by a sheriff who did not witness the crime,
rather than by the victims, and that it was not served or signed by a magistrate the night of
Petitioner’s arrest [Doc. 12 at ¶ 17]. Petitioner’s second habeas claim alleges irregularities in the
grand jury process because women allegedly are excluded from serving as foreman [Doc. 12 at ¶
18]. Petitioner challenged the validity of both the indictment and the grand jury selection process
on direct review, but the TCCA found both claims waived pursuant to Tennessee Code Annotated
§ 22-2-313 because Petitioner failed to object prior to trial. White, 2013 WL 1788535, at *18-19.
If a § 2254 claim is barred from review because of a violation of a state procedural rule,
“that claim is subject to procedural default and will not be reviewed by federal courts unless the
petitioner demonstrates cause and prejudice for the default.” West v. Carpenter, 790 F.3d 693, 697
(6th Cir. 2015). Here, the TCCA invoked the state procedural rule set forth in Tennessee Code
Annotated § 22-2-313 as the basis for declining to review Petitioner’s challenges to the validity of
the indictment and to the selection of the grand jury. Accordingly, Petitioner has procedurally
defaulted those claims. As Petitioner has failed to assert or establish cause and prejudice to excuse
her default, the first and second habeas claims set forth in her second amended § 2254 petition will
be DISMISSED. 3
3.

DENIAL OF RIGHT TO COUNSEL CLAIM

The TCCA also declined to consider on direct appeal Petitioner’s claim of prosecutorial
misconduct because she failed to identify or describe the alleged wrongful conduct. White, 2013
WL 1788535, at *23. Although Petitioner requested a blanket incorporation of the claims asserted
in her appellate brief to the TCCA on direct review, she has not set forth an explicit claim of
prosecutorial misconduct in her second amended § 2254 petition nor further elaborated on the
nature of that alleged misconduct. Accordingly, Petitioner is not entitled to relief on any claim of
prosecutorial misconduct.
13
3

Petitioner’s fourth habeas claim is that she was denied her constitutional right to counsel
[Doc. 12 at ¶ 22]. Specifically, she claims that she was “never asked” if she wanted counsel, that
she was “never offered a choice,” that she was “forced into representing herself,” and that she
never signed a waiver of counsel [Id. at ¶ 30; Doc. 44 at p. 3].
Petitioner argued on direct appeal that the trial court erred in failing to appoint counsel and
in allowing her to represent herself [Doc. 34 Attachment 19 at 22–29] and the TCCA adjudicated
the claim on the merits. The TCCA held that Petitioner “was not entitled to appointed counsel
when her actions thwarted the court's attempts to determine her indigency status in order to appoint
counsel,” that “the trial court did not err in [not] conducting a detailed indigency hearing,” and that
Petitioner “asserted her right to represent herself.”

White, 2013 WL 1788535, at *12–13.

Respondent argues that the decision of the TCCA is entitled to deference under § 2254(d).
a.

APPLICABLE LAW

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. The right to assistance of counsel is made obligatory on the states by the Fourteenth
Amendment and an indigent defendant has the right to have counsel appointed for her. Gideon v.
Wainwright, 372 U.S. 335, 342–45 (1963).
The Sixth and Fourteenth Amendments also guarantee the corollary right to waive counsel
and to proceed pro se. Faretta v. California, 422 U.S. 806, 807 (1975). When an accused chooses
self-representation, she necessarily relinquishes “many of the traditional benefits associated with
the right to counsel.” Id. at 835. Accordingly, “in order to represent [her]self, the accused must
‘knowingly and intelligently’ forgo those relinquished benefits” and “should be made aware of the
dangers and disadvantages of self-representation, so that the record will establish that ‘[s]he knows
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what [s]he is doing and [her] choice is made with eyes open.’” Id. (quoting Adams v. United States
ex rel. McCann, 317 U.S. 269, 279 (1942)); see also Johnson v. Zerbst, 304 U.S. 458, 464 (1938)
(waiver of right to counsel is valid only when it “reflects an intentional relinquishment or
abandonment of a known right or privilege”).
“To be valid such waiver must be made with an apprehension of the nature of the charges,
the statutory offenses included within them, the range of allowable punishments thereunder,
possible defenses to the charges and circumstances in mitigation thereof, and all other facts
essential to a broad understanding of the whole matter.” Von Moltke v. Gillies, 332 U.S. 708, 724
(1948). The Supreme Court has not, however, “prescribed any formula or script to be read to a
defendant who states that he elects to proceed without counsel.” Iowa v. Tovar, 541 U.S. 77, 88
(2004).
Rather, “[t]he information a defendant must possess in order to make an intelligent election
. . . will depend on a range of case-specific factors, including the defendant's education or
sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding.”
Id. As to waiver of trial counsel, the Supreme Court has said that before a defendant may be
allowed to proceed pro se, she must be “warned specifically of the hazards ahead.” Id. at 88–89.
Accordingly, “warnings of the pitfalls of proceeding to trial without counsel . . . must be
‘rigorous[ly]’ conveyed.” Id. at 89 (quoting Patterson v. Illinois, 487 U.S. 285, 298 (1988)).
In a collateral attack, it is Petitioner’s burden to prove that she did not competently and
intelligently waive her right to counsel. Tovar, 541 U.S. at 92.
b.

TCCA DECISION

The TCCA summarized the facts relating to Petitioner’s decision to proceed to trial pro se
as follows:
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The record reflects that the Defendant represented herself until the sentencing
hearing and the motion for a new trial, at which point she was represented by
retained counsel. The Defendant refused to complete an affidavit of indigency
before the trial, even after the trial court explained that the affidavit was required
before counsel could be appointed. The Defendant told the court she could not
afford counsel, and the court released $10,000 of her $20,000 cash bond for her use
in employing counsel. The Defendant later reported to the court that she had not
retained counsel because she could not find counsel who would represent her for a
reasonable fee. When asked if she could not find a lawyer to represent her for
$10,000, she stated that she was invoking her Fifth Amendment rights. She also
expressed her objection to the constitutionality of the court's requiring her to
complete the form. The court repeatedly urged the Defendant to retain counsel or
complete the affidavit of indigency, but the Defendant failed to do so.
After the Defendant failed to retain counsel with the $10,000 the trial court released,
the court reinstated the Defendant's bond to the original amount. The court advised
the Defendant that it was necessary for her to complete the form in order for it to
assess her indigency status and determine whether she qualified for appointed
counsel. When asked whether she wanted to complete the form, she said she did
not. She said that she would represent herself but that her decision was not
voluntary because the court instructed her to complete the affidavit if she wanted
appointed counsel. The record reflects that at one point before the trial, the
Defendant partially completed an affidavit but did not sign it because the numbers
she listed were approximate and she did not think some of the information requested
was relevant. After numerous occasions when the court encouraged the Defendant
to complete the affidavit or hire counsel and explained the gravity of her situation
and the process for obtaining appointed counsel, the court appointed the public
defender to act as advisory counsel for the Defendant at the trial. The Defendant
still had not completed an affidavit of indigency, and the court assessed a $500 fee
for the public defender's services, to be collected from the Defendant's cash bond
at the end of the case.
White, 2013 WL 1788535, at *11.
c.

DISCUSSION

The starting point for cases subject to § 2254(d)(1) is to identify the “clearly established
Federal law, as determined by the Supreme Court of the United States” that governs the habeas
petitioner's claims. Marshall v. Rodgers, 569 U.S. 58, 61 (2013) (quoting Williams, 529 U.S. at
412). As the Supreme Court has reiterated, “[C]learly established Federal law for purposes of §

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2254(d)(1) includes only the holdings, as opposed to the dicta, of [the Supreme Court's] decisions.”
White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (citation omitted).
The Court’s first task then is to determine whether the TCCA unreasonably found that
Petitioner was not denied her constitutional right to counsel. Initially, contrary to Petitioner’s
apparent belief, the Sixth Amendment only guarantees indigent defendants the right to appointed
counsel. Gideon, 372 U.S. at 344 (“any person haled into court, who is too poor to hire a lawyer,
cannot be assured of a fair trial unless counsel is provided for him”). Otherwise, “the Sixth
Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney
whom that defendant can afford to hire, or who is willing to represent the defendant even though
[s]he is without funds.” Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624–25
(1989).
Obviously, then, in order to be entitled to appointed counsel, an accused must first establish
that she is indigent. There is no “clearly established Federal law, as determined by the Supreme
Court of the United States” regarding eligibility for court-appointed counsel. Rather, in most
jurisdictions eligibility is determined by statute. In federal court, for example, 18 U.S.C. §
3006A(b), provides that when a defendant appears unrepresented and does not waive counsel, “the
court, if satisfied after appropriate inquiry that the person is financially unable to obtain counsel,
shall appoint counsel to represent him.” (emphasis added).
In the absence of clearly established federal law on the issue of financial eligibility for
appointed counsel, the Court must determine whether the decision of the TCCA that Petitioner
failed to show under Tennessee law that she is indigent, and therefore was not entitled to appointed
counsel, was “based on an unreasonable determination of the facts in light of the evidence

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presented.” 28 U.S.C. § 2254(d)(2). The Court cannot find that the decision of the TCCA was
unreasonable in this case.
In Tennessee, eligibility for court-appointed counsel is governed by Tennessee Code
Annotated § 40-14-202(b) which requires, inter alia, that the accused’s statements as to financial
ability shall be by sworn testimony in court or by sworn affidavit. Here, Petitioner repeatedly
refused to complete an affidavit of indigency to establish her eligibility for appointed counsel.
Because Petitioner’s own “actions thwarted the court’s attempts to determine her indigency status
in order to appoint counsel,” the TCCA concluded that the trial court did not err in finding her
ineligible for appointed counsel, White, 2013 WL 1788535, at *12, and this decision is not an
unreasonable determination of the facts in light of the evidence.
The real crux of Petitioner’s claim then is her allegation that she did not voluntarily waive
her right to counsel. In addressing this claim, the TCCA identified Faretta as the appropriate
standard and applied it in a reasonable manner in concluding that Petitioner voluntarily asserted
her right to represent herself. Id., at *13. In so finding, the TCCA explained:
The record reflects that before the trial, the court questioned the Defendant about
her legal and procedural knowledge, experience representing herself, the charges
against her, the potential sentences, the fines if convicted, and her privilege not to
testify. Despite the court's extensive efforts to get the Defendant to accept the
assistance of counsel, the Defendant was not cooperative with the court, stated that
the attorneys she interviewed did not meet her expectations and did not charge a
reasonable fee, and indicated her preference to represent herself. It is apparent from
the record that she would not sign the written waiver and wished to proceed pro se,
rather than complete the affidavit of indigency or retain counsel.
Id.
Based on the foregoing, the Court cannot find that the TCCA’s decision that Petitioner
voluntarily waived her right to counsel and asserted her right to proceed pro se was contrary to, or
an unreasonable application of, federal law relating to the Sixth Amendment right to self18

representation. The record shows that Petitioner was “warned specifically of the ‘dangers and
disadvantages of self-representation,’” Faretta, 422 U.S. at 835, and that she made her choice
“with eyes open.” Adams, 317 U.S. at 279.
The record in this case reflects that Petitioner was advised repeatedly of her right to
counsel, was offered many opportunities to establish her eligibility for appointed counsel and even
had half of her cash bond released to permit her to hire an attorney of her own choice. Nevertheless
she refused to complete an affidavit of indigency or to find an attorney of her own choosing, and
clearly expressed a preference to proceed pro se. Moreover, despite her failure to show indigency,
the trial court nevertheless appointed the public defender to aid her at her trial. Under the
circumstances, Petitioner has not met her burden of showing that she did not competently and
intelligently waive her right to counsel, Tovar, 541 U.S. at 92, or that in any way she was denied
her right to counsel as guaranteed by the Sixth and Fourteenth Amendments. See, e.g., United
States v. Krzyske, 836 F.2d 1013, 1017 (6th Cir. 1988) (waiver of right to counsel occurs when the
record shows that an accused was reasonably offered counsel but understandingly rejected the
offer). The Court is satisfied that the TCCA’s decision is not objectively unreasonable.
Under the deferential standard of the AEDPA, the Court finds that the decision of the
TCCA that Petitioner failed to establish indigency was not an unreasonable determination of the
facts in light of the evidence, and that the TCCA’s decision that Petitioner clearly and
unequivocally asserted her right to self-representation is neither contrary to, nor an unreasonable
application of, federal law as established in Faretta. Accordingly, Petitioner’s fourth habeas claim
alleging the denial of her right to counsel will be DISMISSED.
V.

“SECOND MOTION TO TAKE JUDICIAL NOTICE”

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Also pending before the Court is Petitioner’s “second motion to take judicial notice and
motion to grant habeas corpus petition” [Doc. 56]. As with her first “motion to take judicial notice”
[Doc. 41], which the Court denied in a previous Memorandum Opinion [Doc. 45], Petitioner’s
pending motion consists of baseless, outlandish statements primarily designed to show that
Petitioner does not fall under the jurisdiction of anyone but herself.
Among Petitioner’s fanciful assertions are that: the United States is a corporation owned
by the British Crown; that the United States, the State of Tennessee and Greene County are
operating under the Uniform Commercial Code (“UCC”) rather than the common law and
Constitution and therefore her arrest and arraignment are “invalid on dry land;” that Petitioner is
not the “property” of the United States or the State of Tennessee; that she objects to the spelling
of her name in all capital letters; that she is a “prisoner of war” being illegally detained by
Tennessee, Virginia, and the United States; that this judge of the Court, along with all other judges
involved in this case, are agents of the firm of Baker, Donelson, Bearman, Caldwell & Berkowitz,
which is counsel to Israel; and, that on the night of July 27, 2009, Petitioner was “attacked on my
own property via chemical warfare unleashed by Helena Chemical Company and their illegal
Honduran terrorists and South Carolinian agents alleged to be working for ROTHSCHILD’S of
ISRAEL and their counsel, Baker” [Doc. 56 at 1–3]. Petitioner requests: that the Court take
judicial notice that unless it and “any other entity operating in America” can prove they are not a
corporation, they do not have jurisdiction; that the Court provide proof of identity, appointment
and oath; that a decree be issued acknowledging that Tennessee, Virginia and Herbert Slatery III,
Tennessee’s Attorney General, hold no jurisdiction over her; and that this case be transferred to
the Supreme Court for retrial or dismissed for lack of jurisdiction [Id. at 4–5].

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Initially, contrary to Petitioner’s assertions, this Court indisputably has jurisdiction over
Petitioner’s § 2254 petition pursuant to § 2254(a) which explicitly authorizes a district court to
entertain such applications. Furthermore, Petitioner’s repeated request that the Court take judicial
notice that the State of Tennessee and the Greene County Criminal Court had no jurisdiction over
her criminal conduct is legally and factually frivolous. First, Tennessee had personal jurisdiction
over Petitioner at the time of the offense as she resided in the state and “all citizens of the United
States, are subject to the laws of the jurisdiction in which they reside.” See, e.g., Allah El v. District
Attorney for Bronx County, 2009 WL 3756331, at * 1 (S.D.N.Y., Nov. 4, 2009). 4
Moreover, the basic requirement of territorial jurisdiction, which recognizes the power of
a state to punish criminal conduct occurring within its borders, is embodied in the United States
Constitution itself via the Sixth Amendment right to a trial “by an impartial jury of the State and
district wherein the crime shall have been committed.” U.S. Const. amend. VI (emphasis added).
The Tennessee Constitution likewise recognizes the right to a trial by an impartial jury “of the
County in which the crime shall have been committed,” establishing the territorial jurisdiction of
the Greene County Criminal Court over Petitioner’s crime. Tenn. Const. art. I, § 9 (emphasis
added); see also State v. Legg, 9 S.W. 3d 111, 114 (Tenn. 1999).
Because the State of Tennessee and the Greene County Criminal Court clearly had personal
and territorial jurisdiction over Petitioner at the time the offense was committed, her request that
the Court take judicial notice of the fact that they did not is patently frivolous. Moreover, this

Although Petitioner suggests that she does not fall under the jurisdiction of the
“corporation USA,” presumably the corporation owned by the British Crown and operating under
the UCC [Doc. 56 at ¶¶ 1, 7], she has stopped short of declaring that she is not a United States
citizen, and she clearly has shown no hesitation in asserting her own constitutional rights as a
United States citizen.
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4

Court plainly has jurisdiction over Petitioner’s § 2254 petition by the very terms of the statute, and
the Court is under no obligation to establish its identity or credentials in order to preside over
Petitioner’s case, which, incidentally, she herself brought in this Court. Accordingly, Petitioner’s
second motion to take judicial notice and motion to grant habeas corpus petition will be DENIED.
VI.

CONCLUSION
For the reasons set forth herein, the Court finds that none of Petitioner’s claims warrant the

issuance of a writ of habeas corpus. Accordingly, Petitioner’s second amended § 2254 petition
[Doc. 12] and second motion to take judicial notice and grant habeas corpus petition [Doc. 56] will
be DENIED and this action will be DISMISSED WITH PREJUDICE
VII.

CERTIFICATE OF APPEALABILITY
Finally, 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)(1), a petitioner may
appeal a final order in a § 2254 case only if she is issued a COA, and a COA will be issued only
where the applicant has made a substantial showing of the denial of a constitutional right. See 28
U.S.C. § 2253(c)(2).
Where claims have been dismissed on their merits, a petitioner must show reasonable
jurists would find the assessment of the constitutional claims debatable or wrong. Slack v.
McDaniel, 529 U.S. 473, 484 (2000). A petitioner whose claims have been rejected on a
procedural basis must demonstrate that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling. Id.; see also Porterfield v. Bell, 258 F.3d 484, 485-86
(6th Cir. 2001).
Here, the Court finds that Petitioner has failed to make a substantial showing of the denial
of a constitutional right as to any of her claims. Specifically, jurists of reason would not debate
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the Court’s finding that Petitioner failed to exhaust and procedurally defaulted the majority of her
claims, nor that several of her claims are non-cognizable in habeas. Nor has Petitioner shown that
reasonable jurists would find the Court’s assessment of Petitioner’s remaining constitutional claim
debatable or wrong. Because Petitioner has failed to make a substantial showing of the denial of
a constitutional right, a COA SHALL NOT ISSUE.
AN APPROPRIATE ORDER WILL ENTER.
ENTER:

s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE

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