Fair v. Sexton
Filing
20
MEMORANDUM AND OPINION as set forth in following order. Signed by District Judge R Leon Jordan on 9/30/16. (c/m)(ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENVILLE
CONLEY ROSS FAIR,
)
)
)
)
)
)
)
)
)
Petitioner,
v.
DAVID SEXTON, Warden,
Respondent.
Nos.
2:14-CV-340-RLJ
MEMORANDUM AND ORDER
Acting pro se, Conley Ross Fair, (“Petitioner”), an inmate at the West Tennessee
State Penitentiary, brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254,
challenging the legality of his confinement pursuant to a 1997 judgment issued by the
Unicoi County Criminal Court [Doc. 1].
Warden David A. Sexton ( “ Respondent”) has
submitted an answer to the petition, which is supported by copies of the state court record
[Docs. 12-14]. Petitioner has replied to the Respondent’s answer [Doc. 16].
The case is now ripe for disposition.
I.
PROCEDURAL HISTORY
In 1997, after a jury trial, Petitioner was convicted of one count of first degree murder
and one count of attempted first degree murder. Petitioner was sentenced to a term of life
imprisonment plus thirty-five years for these crimes. The judgment was affirmed on direct
appeal by the Tennessee Court of Criminal Appeals (“TCCA”). The Tennessee Supreme Court
(“TSC”) denied permission for further appeal. State v. Fair, No. 03C01-9810-CR-00362, 1999
WL 1045074, at *1 (Tenn. Crim. App. Nov. 19, 1999), perm. app. denied, (Tenn. 2010).
In September of 2011, Petitioner filed a petition for post-conviction relief with the Unicoi
County Criminal Court, which was denied. The TCCA affirmed the state court’s denial in 2014.
Fair v. State, No. E2014-00406-CCA-R3PC, 2014 WL 5502574, at *5 (Tenn. Crim. App. Oct.
31, 2014). Petitioner did not appeal to the (“TSC”) Tennessee Supreme Court.
Petitioner then brought this timely habeas corpus application in this Court [Doc. 1].
II.
BACKGROUND
The facts surrounding Petitioner’s convictions were recited by the TCCA in its opinion
on direct review.
The defendant was convicted of the first degree murder of Bruce Stukey and the
attempted first degree murder of James Brown. By the time of trial, Mr. Brown
had died of causes not related to this case. However, the jury heard an audiotape
of his testimony from the defendant's preliminary hearing, and a transcript was
admitted into evidence. At the preliminary hearing, Mr. Brown testified that
around 6:30 p.m. on August 14, he drove Mr. Stukey to the defendant's house. He
said Mr. Stukey wanted to buy a gun from the defendant, but the defendant said
the gun was hidden on Fire Tower Road. He said the defendant stated that Mr.
Brown's car could not make the drive and asked Mr. Stukey to come back in an
hour, and the two would go to Fire Tower Road to get the gun. Mr. Brown
testified that Mr. Stukey did not want to wait an hour, and they drove to Mr.
Stukey's house to get Mr. Stukey's truck. He said they then picked up the
defendant, and the three of them went to Fire Tower Road around 7:30 p.m.
Mr. Brown testified that Mr. Stukey had no gun or other weapon and that he
would have been able to tell if Mr. Stukey had a weapon underneath his clothing.
He said the defendant directed Mr. Stukey to Fire Tower Road and had Mr.
Stukey pull off the main road near a trail. He said they all got out of the truck and
started walking down the trail. He said the defendant led the way, followed by
Mr. Stukey, then himself. He said they walked through heavy woods, then veered
off the trail on to a walking path. He stated that the path had lots of stickers and
brush and that he stopped and told the defendant and Mr. Stukey that he would
wait for them because the area was too wooded. He testified that the defendant
told him to continue because they were already there.
Mr. Brown testified that he was about twenty feet from the defendant and Mr.
Stukey and that as he tried to make his way down the trail toward them, he heard
a loud popping noise. He said he looked up and saw the defendant coming toward
him pointing a gun toward his head. He said the defendant shot the gun in his
direction, then turned and shot Mr. Stukey twice in the back. He said Mr. Stukey
2
had no weapons and had not threatened the defendant. He said Mr. Stukey fell
face down, and the defendant came toward Mr. Brown again. Mr. Brown testified
that the defendant looked like he had snapped, and he said he started running
through the woods, away from the defendant. He said the defendant chased him
through the woods and fired four or five more shots at him. He said the defendant
stated, “Come here, boy.”
Mr. Brown testified that he continued running but that the incline of the mountain
was so steep, he fell and slid down part of the mountain. He said he ran for a long
time until he no longer heard the defendant chasing him. He said he continued
walking and running through the woods but that he had hurt his leg, and it was
getting dark. He said that when it became too dark to continue, he sat down and
waited for morning. He testified that when it became light again, he continued
walking through the woods until he found a trail that led him to a house. He said
he found a man who drove him to a convenience store where he called the police.
He said that a bullet had grazed his finger.
Mr. Brown testified that all three men had smoked marijuana on the way to Fire
Tower Road. He said that several weeks before the shooting, Mr. Stukey had
suspected the defendant of stealing money from him. Mr. Brown stated that he
had been in a detoxification program for heroin three weeks before the shooting.
Troy Lewis, an officer with the Unicoi County Sheriff's Department, testified that
on August 15, 1995, he was dispatched to Jerry's Market. He said that when he
arrived, medical personnel were treating Mr. Brown. Officer Lewis stated that Mr.
Brown had numerous scratches and a burn on his right middle finger. He said he
learned that Mr. Stukey had been shot on Fire Tower Road and that Mr. Brown
had spent the night getting out of the woods. Officer Lewis testified that he and
Sergeant Harris went to Fire Tower Road on Buffalo Mountain and searched the
area. He said they found Mr. Stukey's red truck, and they secured the scene for the
Tennessee Bureau of Investigation (TBI).
Ron Arnold, a criminal investigator with the Unicoi County Sheriff's Department,
testified that he was dispatched to Buffalo Mountain around 7:30 a.m. on August
15. He said that fifteen to twenty people were searching for Mr. Stukey's body,
but they could not find it. He said they learned that Mr. Stukey was wearing a
pager, and they decided to call it. He said they located the pager but not Mr.
Stukey's body. He testified that he found a trail consisting of Mr. Brown's
receipts, cigarettes, and car keys that led to a blood-stained area deep in the
woods. Agent Arnold testified that he determined that this was the location of the
shooting. He said he assembled a search party to search the immediate area, and
Mr. Stukey's body was found about thirty minutes later, about one-quarter to onehalf mile from the crime scene. He testified that the body had numerous scratches.
Agent Arnold testified that the next day, he returned to the crime scene with a
metal detector and found a spent bullet on the ground.
3
Agent Arnold testified that he learned that the defendant had gone to his sister's
house in Dothan, Alabama, but was on his way back to Tennessee. He said that on
August 17, he learned that the Johnson City Police Department had the defendant
in custody. He said he went to Johnson City to bring the defendant to Unicoi
County. Agent Arnold said the defendant was then arraigned and booked and that
during the booking process, the defendant removed a piece of paper from his
pocket and began to tear it up. Agent Arnold said that another Agent got the letter
from the defendant, and they pieced it together. He said the letter was written and
signed by the defendant. The letter was admitted into evidence, and in the letter,
the defendant admitted killing Mr. Stukey and trying to kill Mr. Brown. He
claimed that Mr. Stukey and Mr. Brown took him into the woods to show him a
pot plant. He wrote that Mr. Brown struck him from behind, causing him to fall
into Mr. Stukey and knock a gun out of Mr. Stukey's pants. The defendant wrote
that he fired the gun because he feared for his life.
Agent Arnold testified that after reading the letter, they took the defendant to the
emergency room to have him examined. Agent Arnold said he did not notice any
injuries on the defendant nor did the defendant complain of any. He said the
defendant was not treated for any injuries at the hospital. Agent Arnold testified
that after interviewing the defendant's family, he went to 700 E. Maple Street in
Johnson City where the defendant had been living with family members. He said
he and other officers looked for a gun in the wooded area behind the street. He
said they found a gun containing one bullet and a box of ammunition between 632
and 634 E. Maple Street.
Agent Arnold testified that he processed Mr. Stukey's truck for fingerprints but
that none were identifiable. He said he found a marijuana pipe containing what
appeared to be marijuana residue in Mr. Stukey's truck. He testified that when Mr.
Stukey's body was found, it was clothed in a tank top and cotton sweat pants with
an elastic stretch band. He admitted that the defendant voluntarily went to the
authorities in Johnson City.
Dr. Cleland Blake, the Assistant State Chief Medical Examiner, testified that he
performed an autopsy on Mr. Stukey's body on August 16. He testified that the
victim died from three gunshot wounds and that he retrieved two bullets from the
victim's body. He said one bullet penetrated the front of the victim's left chest,
traveling in a downward trajectory and lodging above the rib bone. He said
another bullet entered the back through the lower chest area, lodging in a vertebra.
He said he found a third wound that entered the back and exited in the front, just
under the collarbone. He said this wound caused bleeding in the left chest cavity
and penetrated the top of the lung. Dr. Blake testified that the victim lived for as
much as one hour after his injuries were inflicted. He said the victim had
numerous scratches and bruises. He testified that the first two wounds received
were those to the back of Mr. Stukey, with the final wound inflicted at the front of
the chest as Mr. Stukey was falling. He testified that the shots were fired from at
least three feet away and from a steep angle.
4
Robert Royse, a firearms identification specialist with the TBI, testified that he
examined the revolver found in the bushes, the ammunition in the adjacent box,
and the bullets that were retrieved from Mr. Stukey's body and from the crime
scene. He testified that the bullets from Mr. Stukey's body were fired from the
revolver and were the same as the bullet found at the scene. He said the bullets in
the ammunition box were also consistent with the bullets from Mr. Stukey's body
and the scene.
TBI Agent Shannon Morton testified regarding the extensive search for the
defendant's body. He testified that the search was treacherous because of the
wooded, rugged terrain on the mountain and the steep incline. Agent Morton also
testified regarding the defendant pulling out a letter and ripping it up during
booking. His testimony was substantially the same as that of Agent Arnold. Agent
Morton testified that the defendant had no visible injuries and made no complaint
of injuries.
Diane Trivette, the defendant's sister, testified that the defendant came to her
house in Dothan, Alabama, around 1:00 a.m. on August 15. She said he told her
that he thought he had shot and killed someone in self-defense. She told him to
turn himself in to the police. She did not see any injuries on the defendant.
Cathy Fair, the defendant's sister-in-law, testified that the defendant lived with her
and her husband. She testified that the defendant had stated that he was going to
get Mr. Stukey and that she told him to let the law handle the matter. She said she
saw the defendant on their porch at around 2:00 a.m. on August 15 and that the
defendant said, “I did it.” She said she did not know what he meant, and she went
inside. She said that when she came outside, the defendant said he had killed the
victim. She said she remembered making a statement to Agent Morton relating
what the defendant told her about that night. In her statement, she said that the
defendant told her that he, Mr. Stukey and Mr. Brown went to the mountain and
walked down the trail. She said the defendant told her he asked Mr. Stukey why
Mr. Stukey had asked the defendant's niece for “a piece of ass.” The defendant
told her that Mr. Stukey denied making the statement. She said the defendant told
her that he called Mr. Stukey a “lying son-of-a-bitch” and shot him in the middle
of the chest. Ms. Fair stated that the defendant told her that Mr. Stukey said he
would kill the defendant and that Mr. Stukey came toward the defendant. She said
the defendant told her that he then shot Mr. Stukey in the heart and that Mr.
Brown ran off. She said the defendant told her that Mr. Stukey was trying to crawl
away, and he shot him twice in the back.
Ms. Fair stated that the defendant told her that he went through Mr. Stukey's
pockets and took sixty dollars, cigarettes, and a lighter. She said the defendant
told her that he talked to Mr. Stukey as he was dying and that Mr. Stukey asked
the defendant why he shot him and told the defendant that he loved him. She said
5
the defendant told her that he told Mr. Stukey that “no one f* * *s with my
family” and lives.
At trial, Ms. Fair testified that before the defendant left to go with Mr. Stukey on
the night of the murder, she knew the defendant was mad at Mr. Stukey for
making the sexual comment to her daughter. Ms. Fair testified that the defendant
told her that on the mountain, he could not find the keys to Mr. Stukey's truck but
that if he had, he planned to take Mr. Stukey to a crack house in Kingsport to
make it appear as if he had been killed by drug dealers. She said the defendant
told her that he did not chase Mr. Brown down the mountain because he was out
of bullets.
Jennifer Gibson, the defendant's niece, testified that on August 11, Mr. Stukey
was outside her house in his truck, waiting for the defendant. She said Mr. Stukey
asked her “for a piece of ass' and asked her to meet him that night at 8:30. She
said the comment scared her because she had been raped twice before, though not
by Mr. Stukey. She said she told the defendant about the comment later that day,
and the defendant said he would take care of it. She testified that on August 14,
the defendant left with Mr. Brown and Mr. Stukey. She said that when the
defendant returned, he told her that he had shot Mr. Stukey in the back and killed
him because of what Mr. Stukey had said to her.
Eric Alford, a Unicoi County Deputy Sheriff, testified that on August 18, 1997,
the defendant initiated a conversation with him following a court hearing. He said
the defendant wanted to file a motion to contest the autopsy because the autopsy
report was wrong regarding where Mr. Stukey was shot. Deputy Alford testified
that the defendant told him that he shot Mr. Stukey “side by side on the shoulder
blade” and that he should know because “he shot the motherf* * *er.” Deputy
Alford said the defendant stated that Mr. Stukey had messed with his niece and
that a child molester was the worst kind of criminal. He said the defendant stated
that he was raised around violence and that when someone messes with him, his
first instinct is to kill them. He said the defendant stated, “if it happened to your
niece you'd ... put a bullet in their head.”
Fair, 1999 WL 1045074, at *1-5. On this evidence, the jury convicted Petitioner of one count of
first degree murder and one count of attempted first degree murder.
III.
DISCUSSION
Under the review standards set forth in the Antiterrorism and Effective Death Penalty
Act (AEDPA), codified in 28 U.S.C. § 2241, 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)
6
“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.A. § 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 Supreme Court cases which governs 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 AEDPA standard is a high 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, 562 U.S.
86, 102 (2011)).
AEDPA prevents the use of “federal habeas corpus review as a vehicle to
second-guess the reasonable decisions of state courts.” Renico v. Lett, 559 U.S. 766, 779
(2010).
Furthermore, findings of fact which are sustained by the record are entitled to a
presumption of correctness—a presumption which may be rebutted only by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).
Petitioner raises four claims in his petition: (1) multiple theories of ineffective assistance
of counsel; (2) denial of the constitutional right of confrontation; (3) unreasonable application of
7
the law by the state court; and (4) insufficient evidence to sustain a conviction of first degree
murder and attempted first degree murder [Doc. 1, pp. 11-13].
The Warden argues, in his response, that relief should not be granted because the claims
were adjudicated on the merits by the state court, culminating in a decision that cannot be
disturbed, given the deferential standards of review set forth in 28 U.S.C. § 2254. The Court
agrees with Respondent Warden and, for the reasons which follow, will DENY the petition and
DISMISS this case.
A. Ineffective Assistance of Counsel
Petitioner asserts three separate theories of ineffective assistance, including allegations
that trial counsel failed: (i) to make an offer of proof of prior inconsistent statements made by a
key witness; (ii) properly present a self-defense theory; and (iii) to demonstrate to the court that
Petitioner “personally waived his right to testify” [Doc. 1 p. 11].
In opposition to Petitioner’s claims, Respondent asserts that the state court’s
adjudication of Claims (i), (ii) and (iii) was not contrary to or an unreasonable application of
the relevant Supreme Court precedent in Strickland [Doc. 12, pp. 16-22]. Further, Respondent
argues that Petitioner has failed to “overcome the presumption of correctness accorded these
factual and credibility determinations.” [Id.].
To prevail on a claim of ineffective assistance, a petitioner must show that a
deficient performance on the part of counsel resulted in prejudice to his defense. Strickland
v. Washington, 466 U.S. 668, 687 (1984). The appropriate measure of attorney performance
is “reasonableness under prevailing professional norms.” Id. at 688. Petitioner must “identify
the acts or omissions of counsel that are alleged not to have been the result of reasonable
professional judgment.”
Id. at 690.
The evaluation of the objective reasonableness of
8
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).
Thus, it is strongly presumed that
counsel’s conduct was within the wide range of reasonable professional assistance.
Strickland, 466 U.S. at 689.
When considering prejudice, a petitioner must show a reasonable probability that,
but for counsel’s deficient performance, the result of the proceeding would have been
different. Id. at 694.
“A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. A reasonable probability “requires a substantial, not just
conceivable, likelihood of a different result.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011)
(citation and internal quotation marks omitted).
Finally, petitioners who assert claims of “ineffective assistance of counsel under
Strickland have a heavy burden of proof.” Whiting v. Burt, 395 F.3d 602, 617 (6th Cir.
2005).
“[W]hen a federal court reviews an ineffective-assistance claim brought by a state
prisoner, the question is not simply whether counsel’s actions were reasonable, ‘but whether
there is any reasonable argument that counsel satisfied Strickland’s deferential standard.’”
McGowan v. Burt, 788 F.3d 510, 515 (6th Cir. 2015) (quoting Harrington v. Richter, 562 U.S.
86, 105 (2011)).
Citing to Strickland, the TCCA applied its test to Petitioner’s claims of ineffective
assistance and required him to show: “(1) that counsel's performance was deficient and (2) the
deficient performance prejudiced the defense…” Fair, 2014 WL 5502574, at *12. Because
the TCCA cited to Strickland and employed Strickand’s two-pronged test in reviewing
9
Petitioner’s claims, its conclusions relative to those claims are not contrary to the wellestablished legal rule in Supreme Court cases governing ineffective assistance claims.
1. Prior Inconsistent Statements
Applying Strickland, the TCCA first addressed Petitioner’s claim that counsel failed to
make an offer of proof of prior inconsistent statements made by the only eyewitness to the
shooting. The TCCA held that while counsel “presented no police reports or documentation
regarding the relevant statements . . . the post-conviction court properly found that
overwhelming evidence of the Petitioner’s guilt was presented at the trial.” Fair, 2014 WL
5502574, at *12. The court noted that Petitioner’s conviction was based, in large part, on the
“testimony of the Petitioner’s niece and sister-in-law, who testified that the Petitioner admitted
killing Mr. Stukey and shooting at Mr. Brown after confronting Mr. Stukey about his sexual
advances toward the Petitioner’s niece.” Id. ¶
The TCCA found that while counsel’s performance may have proven to be deficient, an
offer of proof regarding the prior inconsistent statement would not have changed the outcome
of the trial or the appeal. Id. Finding no reason to disturb the trial court’s finding against
Petitioner, the TCCA did not grant relief on this claim.
2. Self-Defense
The TCCA next discussed Petitioner’s allegations that counsel failed to properly present
a self-defense theory. The TCCA held that counsel had been unsuccessful in his attempts to
locate potential witnesses to testify on Petitioner’s behalf, but that the failed attempts did not
amount to deficient performance. The TCCA noted that Petitioner failed to present any potential
trial witnesses at his post-conviction hearing and, citing Black v. State, 794 S.W.2d 752
(Tenn.Crim.App.1990), held that “when a petitioner claims counsel was ineffective by failing to
10
call a witness at a trial, a petitioner generally cannot establish prejudice without presenting that
witness at the post-conviction hearing. ” The TCCA held, based on Petitioner’s failure to
present witnesses at his post-conviction hearing and, as a result, his failure to establish
prejudice, that Petitioner was not entitled to relief on this basis.
3. Right to Testify
Finally, the TCCA addressed Petitioner’s claim that counsel was deficient for failing to
protect Petitioner’s right to take the stand when the record contained no indication that Petitioner
had explicitly waived his right to testify. The TCCA, in its analysis of Petitioner’s claim,
ultimately addressed the issue of “whether counsel adequately advised the Petitioner of his
right to testify and whether the Petitioner made an informed decision.” Fair, 2014 WL
5502574, at *13. The TCCA, finding “undisputed evidence . . . that the Petitioner and counsel
discussed whether the Petitioner should testify at the trial and that counsel advised the
Petitioner against testifying because of his lengthy criminal history,” found no deficient
performance on counsel’s behalf and no prejudice. Id., at *14.
This Court finds that the TCCA did not unreasonable apply Strickland in its
adjudication with respect to the three alleged attorney errors encompassed in this claim. Further,
Petitioner has failed to overcome the presumption of correctness accorded to the TCCA’s factual
determinations as is required by 28 U.S.C. § 2254(e)(1). The writ of habeas corpus will not issue
on Petitioner’s ineffective assistance claims.
B. Denial of the Constitutional Right of Confrontation
Petitioner’s second claim alleges a denial of the constitutional right of confrontation as
guaranteed to him by the 6th and 14th amendments [Doc. 1 pp. 11-12]. Specifically, Petitioner
alleges that the court allowed the state to introduce hearsay—namely, Mr. Brown’s preliminary
11
hearing testimony—as substantive evidence, while denying Petitioner an opportunity to present
evidence of Mr. Brown’s prior inconsistent statements to rebut it [Id.]. Petitioner also argues that
the court’s decision to allow a redacted audio tape and transcripts of Mr. Brown’s testimony
infringed on Petitioner’s right of confrontation “because the redacted portions related directly to
the alleged victim’s prior criminal history, which would have adversely affected the state’s case
in chief” [Id.].
The Confrontation Clause, found within the Sixth Amendment, guarantees that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. Const. amend. VI. The right of confrontation “‘protects a defendant against a
conviction . . . by affording the defendant means to persuade the jury that the evidence should be
discounted as unworthy of credit.’” United States v. Washam, 468 F. App’x 568, 571 (6th Cir.
2012) (quoting Perry v. New Hampshire, 132 S.Ct. 716, 723 (2012)). A petitioner’s rights under
the Clause include the right to a meaningful cross-examination and the “right to impeach [a
witness] with inconsistent statements.” Blackston v. Rapelje, 780 F.3d 340, 348–49 (6th Cir.
2015). However, “a violation of the Confrontation Clause does not warrant automatic reversal.”
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). Rather, the denial is “subject to harmlesserror analysis” to determine whether, assuming a cross-examination were fully realized, a
reviewing court would “be convinced beyond a reasonable doubt that the jury would have
reached the same result . . . if cross-examination had led the jury affirmatively to believe that the
witness was lying.” Id.
1. Prior Inconsistent Statements
In revisiting the trial court’s decision to reject Petitioner’s offer of evidence, both the
state and the TCCA agreed that the trial court erred in excluding the evidence of Mr. Brown’s
12
prior inconsistent statements. However, the TCCA held that the rejection of the evidence in
violation of the Confrontation Clause was harmless because Petitioner “failed to demonstrate
either that the proffered statement was inconsistent or that the trial court’s ruling affected the
outcome of the trial.” Fair, 1999 WL 1045074, at *6.
The TCCA ruled similarly when addressing the issue again in Petitioner’s postconviction appeal. Fair, 2014 WL 5502574, at *11. On appeal, Petitioner contended “that the
post-conviction court erred by failing to make findings of fact and conclusions of law regarding
[Petitioner’s] claim that he was denied his right to confront witnesses.” Id. The TCCA found
that because “neither the Petitioner nor his counsel mentioned confrontation rights at the postconviction hearing,” Petitioner could not demonstrate by clear and convincing evidence that his
confrontation rights were violated. Id. Further, and with respect to Petitioner’s claim of Mr.
Brown’s prior inconsistent statements, the TCCA explained that “the trial transcript was . . .
included in the appellate record, [but] the substance of Mr. Brown's previous police statements
[were] not.” The transcript, on its own, was insufficient to demonstrate prior inconsistencies or
to show that the state court’s decision to exclude the testimony affected the outcome of the trial.
Id.
As the TCCA held, the record fails to establish a violation of Petitioner’s right of
confrontation, or that any violation changed the outcome of Petitioner’s trial. The TCCA’s
finding was not based on an unreasonable application of the clearly established relevant rules in
Supreme Court jurisprudence and Petitioner has failed to present any evidence to overcome the
presumption of correctness afforded to the TCCA’s determinations. Accordingly, the writ will
not issue with respect to this claim.
2. Redacted Testimony
13
Petitioner also argued that his right to confrontation was violated by the court’s
admission of a redacted version of Mr. Brown’s testimony [Doc. 1 p. 12]. The redacted portion
is as follows:
DEFENSE ATTORNEY: And, you were aware that Mr. Stookey was on parole?
MR. BROWN: Yes.
DEFENSE ATTORNEY: Do you know why he was on parole?
MR. BROWN: I knew he got in trouble over his wife, he was married at one time before
he went to jail and he was wanting to get out of the marriage and evidently she'd had him
put in jail and I didn't know if it was for assault of [sic] for what reasons it was.
DEFENSE ATTORNEY: Were you aware that it involved firearms?
MR. BROWN: No.
In reviewing Petitioner’s claim, the TCCA considered the omitted portion and concluded that
Petitioner failed to show “that the redacted testimony relating to the victim's conviction for
assaulting his wife explain[ed] or qualif[ied] the admitted portion of the testimony” and therefore
“failed to show that fairness required the admission of the
redacted testimony
contemporaneously with the admitted testimony” Fair, 1999 WL 1045074, at *7.
Tennessee Rule of Evidence 106 provides, “[w]hen a writing or recorded statement or
part thereof is introduced by a party, an adverse party may require the introduction at that time of
any other part or any other writing or recorded statement which ought in fairness to be
considered contemporaneously with it.” Tenn. R. Evid. 106. “[I]ts application is ‘restrict[ed] ...
by the qualification that the portion sought to be admitted be relevant to the issue, and only those
parts which qualify or explain the subject matter of the portion offered by opposing counsel
14
should be admitted.’” United States v. Dotson, 715 F.3d 576, 582 (6th Cir. 2013) (United States
v. Gallagher, 57 Fed.Appx. 622, 628 (6th Cir.2003)).
As the TCCA correctly explained, “although evidence of the victim’s previous conviction
for assault may have been admissible at some later point in the trial to support the defendant's
self-defense claim that the victim was the aggressor,” the rule does not require the court to allow
a party to introduce evidence during an adverse party’s case if the evidence does not in some
way explain the subject matter of the evidence offered by the opposing party. The TCCA found
that Petitioner failed to demonstrate that the redacted testimony related to the victim's conviction
or that it explained or clarified portions of the testimony offered by the state. Consequently, the
TCCA concluded Petitioner’s claim—that the trial court abused its discretion by admitting only a
portion of Mr. Brown's testimony—was without merit.
The TCCA’s finding was not based on an unreasonable application of the law. Further,
Petitioner has failed to overcome the presumption of correctness afforded the TCCA’s findings
of fact. A writ will not issue with respect to this claim.
C. Unreasonable Application of the Law by the State Court
Petitioner’s third claim alleges that the state court’s finding of harmless error “denied
[P]etitioner his right to [c]onfrontation and due process of law” [Doc. 1 p. 12].
Trial court errors in state procedure and/or evidentiary law do not rise to the level of
federal constitutional claims warranting relief in a habeas action unless the error renders the
proceeding so fundamentally unfair as to deprive the petitioner of due process under the
Fourteenth Amendment. McAdoo v. Elo, 346 F.3d 159, 165–66 (6th Cir. 2003)(quoting Estelle
v. McGuire, 502 U.S. 62, 69-70, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).
15
This claim provides no cognizable basis for habeas corpus relief. 28 U.S.C. § 2254(a)
(habeas corpus relief is appropriate only for constitutional violations); see Swarthout v. Cooke,
562 U.S. 216, 219 (2011) (claims which allege a state law error or an incorrect application of
state law do not present cognizable issues for federal habeas review); Pulley v. Harris, 465 U.S.
37, 41 (1984) (“A federal court may not issue the writ on the basis of a perceived error of state
law.”).
Petitioner is therefore not entitled to habeas corpus relief on this issue.
D. Insufficient Evidence to Sustain a Conviction of First Degree Murder and
Attempted First Degree Murder
Petitioner asserts in his final claim that there was insufficient evidence to sustain his
conviction of first degree murder and attempted first degree murder [Doc. 1 p. 13]. The main
thrust of his challenge to the evidentiary sufficiency of the conviction is that the state did not
present sufficient evidence to satisfy the element of premeditation [Id.]. Petitioner attempts to
bolster his argument of insufficiency by pointing to the state’s lack of evidence regarding
statements made at the time of the killing, arguing that the state’s evidence consists primarily of
statements Petitioner made after the killing, “which is not sufficient to support the element fo
[sic] premeditation” [Id.].
The TCCA approached its analysis of the claim by defining .
Premeditation is a necessary element of first degree murder. See
Tenn.Code Ann. § 39 13 202(a)(1). A premeditated act is one
“done after the exercise of reflection and judgment.”
“Premeditation” means that the intent to kill must have been
formed prior to the act itself. It is not necessary that the purpose to
kill pre-exist in the mind of the accused for any definite period of
time. The mental state of the accused at the time the accused
allegedly decided to kill must be carefully considered in order to
determine whether the accused was sufficiently free from
excitement and passion as to be capable of premeditation.
16
State v. Fair, No. 03C01-9810-CR-00362, 1999 WL 1045074, at *5 (Tenn. Crim. App. Nov. 19,
1999) (quoting Tenn.Code Ann. § 39-13-202(d)).
The TCCA then summarized the evidence used to establish premeditation. The evidence
included: (1) testimony from Petitioner’s niece that she had informed Petitioner three days before
the shootings that Mr. Stukey had propositioned her, and that Petitioner replied, “I’ll take care of
it;” [proof of intent prior to the killing](2) testimony from James Brown which, in relevant part,
described the interaction between the men after being led into the woods—specifically, that
Petitioner led Mr. Stukey and Mr. Brown into the woods under the guise of selling Mr. Stukey a
gun, that Petitioner urged the two men to continue deeper into the woods even after Mr. Brown
expressed a desire to go back and that Petitioner then, without provocation shot Mr. Stukey and
then shot at Mr. Brown, who escaped by fleeing into the woods[mental state at the time]; and
finally (3) testimony from Cathy Fair that Petitioner told her that he was going to get Mr.
Stuckey for what he had done, and that after the murder Petitioner told Ms. Fair that he planned
to take Mr. Stukey’s body to a crack house to make it appear as if Mr. Stukey had been killed by
drug dealers [prior intent]. Fair, 1999 WL 1045074, at *5. The TCCA held that there was
sufficient evidence to satisfy the premeditation element based on witnesses’ testimony at trial.
Id.
The controlling rule for resolving a claim of insufficient evidence is contained in Jackson
v. Virginia. See Gall v. Parker, 231 F.3d 265, 287-88 (6th Cir. 2000) (commenting that Jackson
is 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
17
a reasonable doubt. Jackson, 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. at 319; 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
owed 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)
(quoting Jackson, 443 2122 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. Cavazos, 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 “bears a heavy burden” when insufficiency of
the evidence is claimed. United States v. Vannerson, 786 F.2d 221, 225 (6th Cir. 1986).
Petitioner presented evidence to the jury to show a lack of premeditation – specifically,
that Mr. Brown had testified that Petitioner had suddenly “snapped” in the woods. Petitioner
also argued that he fired in self-defense and in reaction to being pushed by Mr. Brown. The jury
did not accept either argument. Nothing Petitioner has presented to this Court demonstrates that
the TCCA unreasonably determined that the evidence presented to the jury was sufficient to
sustain his conviction of first degree murder and attempted first degree murder. Indeed, given
the double deference owed to the state court’s conclusion and given this record and the evidence
18
contained therein, this Court finds that the state court’s application of Jackson to the facts of
Petitioner’s case was not unreasonable and that its decision was not based on unreasonable
factual determinations.
No writ will issue with respect to this claim.
IV.
CONCLUSION
For the above reasons, this pro se state prisoner’s application for a writ of habeas corpus
[Doc. 1] will be DENIED and this case will be DISMISSED.
V. CERTIFICATE OF APPEALABILITY
Finally, the Court must consider whether to issue a certificate of appealability (COA)
which Petitioner has requested [Doc. 16 pp. 22-23]. A petitioner may appeal a final order in a §
2254 case only if he 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). A
petitioner whose claims have been rejected on a procedural basis must demonstrate that
reasonable jurists would debate the correctness of a court’s procedural rulings. Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Porterfield v. Bell, 258 F.3d 484, 485-86 (6th Cir. 2001).
Where claims have been dismissed on their merits, a petitioner must show that reasonable jurists
would find the assessment of the constitutional claims debatable or wrong. Slack, 529 U.S. at
484.
After having reviewed the claims and in view of the law upon which is based the
dismissal on the merits of the adjudicated claims, reasonable jurors would neither debate the
correctness of the Court’s procedural rulings nor its assessment of the claims. Id. Because
reasonable jurists could not disagree with the resolution of these claims and could not conclude
that they “are adequate to deserve encouragement proceed further,” Miller-El v. Cockrell, 537
19
U.S. 322, 327 (2003), the Court will DENY issuance of a COA. 28 U.S.C. § 2253; Fed. R. App.
P. 22(b).
AN APPROPRIATE JUDGMENT ORDER WILL ENTER.
ENTER:
s/ Leon Jordan
United States District Judge
20
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?