Flinn v. Sexton (ASH)

Filing 34

MEMORANDUM OPINION. Signed by District Judge Pamela L Reeves on 3/7/18. (copy mailed to James M. Flinn) (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
JAMES M. FLINN,

)
)
)
)
)
)
)
)
)

Petitioner,
v.
DAVID A. SEXTON,
Respondent.

No. 3:15-cv-00016
REEVES/GUYTON

MEMORANDUM OPINION
This is a pro se prisoner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
[Docs. 1, 14, 20].1 Respondent filed answers thereto, as well as copies of the state record [Docs.
17, 21, 27, 31–33]. Petitioner filed a reply [Doc. 28]. After reviewing all of the relevant filings,
including the state court records, the Court finds that the record establishes that Petitioner is not
entitled habeas relief. Accordingly, no evidentiary hearing is warranted, see Rules Governing §
2254 Cases, Rule 8(a) and Schirro v. Landrigan, 550 U.S. 465, 474 (2007), Petitioner’s § 2254
petition [Docs. 1, 14, 20] will be DENIED, and this action will be DISMISSED.
I.

PROCEDURAL HISTORY

An Anderson County jury found Petitioner guilty of one count of first-degree murder. State
v. Flinn, No. E2009-00849-CCA-R3-CD, 2013 WL 6237253, at *1 (Dec. 3, 2013). In his appeal
of this conviction, Petitioner raised a number of arguments, including the argument that his right
to due process was violated because the State failed to prove that the offense was committed before

1

Petitioner filed an original § 2254 motion and two amended petitions [Docs. 1, 14, 20].
In these amended petitions, Petitioner altered the phrasing, but not necessarily the substance, of
his arguments for § 2254 relief, all which relate to whether the evidence at trial was sufficient to
establish that the offense occurred before the return of the indictment. In this order, the Court has
endeavored to address the substance of all Petitioner’s claims as the Court understands them.

the return of the indictment as required by Tenn. Code Ann. § 39-11-201(a)(4) [Doc. 33-1 p. 58–
64]. The Tennessee Court of Criminal Appeals (“TCCA”) found that the evidence sufficiently
established that the offense was committed before the return of the indictment, however, and
therefore affirmed Petitioner’s conviction. Id. at 49–50, 83.
II.

BACKGROUND

The indictment charging Petitioner with first-degree murder in the underlying criminal
proceedings states as follows:
THE GRAND JURORS FOR THE STATE OF TENNESSEE,
duly elected, impaneled, sworn, and charged to inquire in and for
the body of the County of Anderson in the state aforesaid, upon
their oath, present that
JAMES MICHAEL FLINN
heretofore, to wit, on or about July 21, 2005 before the finding of
this indictment, in the County aforesaid, did then and there
unlawfully, intentionally and with premeditation kill Greig George
Beggs, in violation of T.C.A. 39-13-202,
against the peace and dignity of the State of Tennessee.
[Doc. 32-23 p. 36]. The record establishes that this indictment was read to the jury and was an
exhibit to the trial [Doc. 31-8 p. 4; Doc. 32-23 p. 36]. The record further demonstrates that an
investigator testified at Petitioner’s criminal trial about his investigation of the Beggs murder and
the evidence that came up therein, stating in relevant part that he “focused his energy on the
information and evidence that [they] had and it ultimately ended up in the indictment and arrest of
[Petitioner]” [Doc. 31-15 p. 51–52].
The jury instructions in the underlying criminal proceedings stated in relevant part that
“[t]he indictment in this case is the formal written accusation charging the defendant with a crime.
It is not evidence against the defendant and does not create any inference of guilt . . . . statements,

2

arguments[,] and remarks of counsel are intended to help you in understanding the evidence and
applying the law, but they are not evidence. If any statements were made that you believe are not
supported by the evidence, you should disregard them” [Doc. 32 p. 1–2].
The Tennessee Criminal Court of Appeals (“TCCA”) stated as follows in denying
Petitioner relief for his claim that his right to due process was violated because the State failed to
prove that the offense was committed before the return of the indictment as required by Tenn.
Code Ann. § 39-11-201(a)(4):
The Defendant argues that his due process rights were violated
because the State failed to prove that the offense was committed
before he was indicted. See T.C.A. § 39–11–201(a)(4) (2010). He
argues that the record does not show the jury was present when the
indictment was read and that the reading of the indictment did not
make the indictment date evidence because it was hearsay and read
by the prosecutor, not a witness. The State claims that sufficient
proof exists to show that the crime was committed before the
Defendant was indicted. We agree with the State.
Tennessee Code Annotated section 39–11–201(a)(4) (2010)
provides that no person may be convicted of an offense unless the
State proves beyond a reasonable doubt that the “offense was
committed prior to the return of the formal charge.” In State v.
Brown, 53 S.W.3d 264 (Tenn.Crim.App.2000), this court stated the
following regarding this requirement:
Granted, this is an easy matter to prove.... [The]
indictment itself can establish the date upon which it
was returned. Thus, the reading of the indictment to
the jury, coupled with evidence of when the offense
was committed, would establish that the offense was
committed prior to the return of the indictment.
Also, the State could merely ask an appropriate
witness whether the actions of the defendant
constituting the offense occurred before the
defendant was charged with that offense. This would
satisfy the requirements of the statute as well.

3

Id. at 279. In [Brown], this court reversed the defendant’s
convictions because there was “no evidence that the indictment was
ever read to the jury or shown to the jury, and no witness was asked
whether the offense occurred prior to the return of the
indictment.” Id. at 279–80. This court concluded, though, that the
State’s failure to prove the offense occurred before the return of the
indictment did not prevent the retrial of the defendant. Id. at 280.
As a preliminary matter, we note the Defendant’s argument
that Brown is wrong and inconsistent with the laws of this state.
“Opinions reported in the official reporter . . . shall be considered
controlling authority for all purposes unless and until such opinion
is reversed or modified by a court of competent jurisdiction.” Tenn.
S.Ct. R. 4(G)(2). The opinion is published and remains the
controlling precedent.
According to the trial transcript, the prosecutor read the indictment
to the jury. The record shows that the indictment was returned on
February 7, 2006. During the trial, Special Agent Corbitt testified
that he was assigned to investigate a homicide that occurred in
Norris, Tennessee on July 21, 2005. Officer Foust testified that on
July 21, 2005, he responded to a call that shots had been fired and
that the victim had been shot at 88 West Norris Road. Trooper Carr
testified that on July 21, 2005, he received a call over the radio about
a shooting at 88 West Norris Road. Paramedics Shetterly and Sweet
both testified about responding to a call for a shooting victim on July
21, 2005. The victim’s neighbors testified about hearing shots the
morning of July 21, 2005. We conclude that the evidence
sufficiently shows that the offense was committed before the return
of the indictment.
State v. Flinn, No. E2009-00849-CCA-R3-CD, 2013 WL 6237253, at *49–50 (Tenn. Crim. App.
Dec. 3, 2013).
III.

STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), codified in 28

U.S.C. § 2254, et. seq., a district court may not grant habeas corpus relief for a claim that a state
court adjudicated on the merits unless the state court’s adjudication of the claim:

4

(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the state court proceeding.

28 U.S.C. § 2254(d)(1)–(2).
The § 2254(d) standard is a hard standard to satisfy. Montgomery v. Bobby, 654 F.3d 668,
676 (6th Cir. 2011) (noting that 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, where the record supports the state court’s findings of fact, those findings are
entitled to a presumption of correctness which may be rebutted only by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
IV.

ANALYSIS

In his § 2254 habeas corpus petition [Docs. 1, 14, 20] Petitioner raises various claims, all
of which relate to the reading of the indictment at trial. Specifically, Petitioner asserts that:
(1) he was denied due process and convicted on insufficient
evidence because the State read the indictment to the jury as
evidence of his guilt;
(2) the reading of the indictment to the jury as evidence of his guilt
violated Petitioner’s right to confront and cross-examine the
witness against him;
(3) the reading of the indictment to the jury as evidence of his guilt
violated his right to a fair trial;
(4) the reading of the indictment to the jury as evidence of his guilt
violated his right to trial by jury;
(5) the TCCA misstated the record by stating that Petitioner argued
that the date of the indictment’s return was read from the
indictment to the jury; and
5

(6) the TCCA misstated the record by stating that the date of the
indictment’s return is in the record.
The Court will address each of these arguments in turn based on the substance thereof.
A. Sufficiency of the Evidence2
First, Petitioner argues that the evidence at trial was insufficient to establish that the offense
occurred before the return of the indictment. This claim is without merit, however, as the record
establishes a rational juror could have concluded that the evidence presented at trial established
beyond a reasonable doubt that the offense occurred before the return of the indictment.
Section 39-11-201(a)(4) of the Tennessee Code also provides in relevant part that “[n]o
person may be convicted of an offense unless [] the following is proven beyond a reasonable doubt
. . . the offense was committed prior to the return of the formal charge.” Tenn. Code Ann. § 3911-201(a)(4). The Supreme Court has stated that it is within the province of the State to regulate
the manner in which it carries out its laws, including specifically those regarding “the burden of
producing evidence and the burden of persuasion,” and that the State’s decisions on such issues do
not violate the Due Process Clause unless they offend a fundamental principle of justice. Patterson
v. New York, 432 U.S. 197, 202 (1977). The Supreme Court has further held that the Due Process
Clause requires the prosecution to prove beyond a reasonable doubt each fact required to constitute
the crime charged, and that the only facts that constitute the crime are those that appear on the face
of the statute as part of the definition of the crime. Id. at 221 (citations omitted).
2

In his answers, Respondent asserts that Petitioner did not fairly present his claim that the
evidence was insufficient to establish that the offense occurred before the return of the indictment
to the state courts. This assertion is incorrect. As set forth above, Petitioner thoroughly detailed
this claim in his appellate brief [Doc. 31-1 p. 58–64] and the TCCA addressed the claim on the
merits in its opinion denying Petitioner relief [Doc. 33-3 p. 58–73]. State v. Flinn, No. E200900849-CCA-R3-CD, 2013 WL 6237253, at *49–50 (Tenn. Crim. App. Dec. 3, 2013). Thus,
Respondent’s answers to the § 2254 petition are deficient on this issue.
6

Tennessee’s requirement of proof beyond a reasonable doubt that the offense was
committed prior to the indictment, contained in Tenn. Code Ann. § 39-11-201(a)(4), is not a fact
that appears on the face of the statute setting forth the elements of first degree murder, Tenn. Code
Ann. § 39-13-202. Further, Petitioner has not cited any Supreme Court case law holding that a
separate state statute that requires that certain issues other than the specific elements of the crime
be proven beyond a reasonable doubt makes those issues an “essential element of the crime”
subject to protection under the Due Process Clause. Regardless, however, even if the Court
assumes that this is the case, it is apparent that there was sufficient evidence introduced at trial
from which a reasonable jury could have found that Petitioner’s offense occurred before the return
of the indictment.
Where a prisoner argues that there is insufficient evidence to support his conviction, the
relevant question is whether, viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the prisoner guilty beyond a reasonable doubt of all
essential elements of the crime. Jackson v. Virginia, 443 U.S. 307, 319–20 (1979). Petitioner has
not cited any evidence from the trial suggesting that the Beggs murder was committed after the
indictment was returned.3 Further, as set forth above, an investigator testified at Petitioner’s trial
about his investigation of the Beggs murder, stating specifically that he “focused his energy on the
information and evidence that [they] had and it ultimately ended up in the indictment and arrest of

3

Notably, Petitioner does not even allege that the indictment was returned prior to the date
on which the offense was committed, but rather admits that Beggs was murdered on July 21, 2005,
and that he was indicted on February 7, 2006 [Doc. 20 p. 2 ¶ 5]. Based on this admission and
reading Petitioner’s filings as a whole, it is apparent that Petitioner does not allege that the jury’s
implicit finding that the offense occurred prior to the return of the indictment was incorrect.
Rather, Petitioner takes issue with the State of Tennessee’s case law providing that the reading of
the indictment at trial may be sufficient to establish that the offense occurred before the return of
the indictment.
7

[Petitioner]” [Doc. 31-15 p. 51–52]. In light of the lack of any evidence tending to show that the
indictment was returned before the offense was committed, a rational finder of fact could have
found that this portion of the investigator’s testimony, standing alone, established beyond a
reasonable doubt that the offense occurred before the return of the indictment.
Accordingly, even if the Court assumes without finding that the Due Process Clause
required the State to prove that the offense occurred before the return of the indictment and that
the reading of the indictment at trial was insufficient to establish that fact beyond a reasonable
doubt, the testimony of the investigator was sufficient evidence on this issue. As such, Petitioner
is not entitled to relief under § 2254 for this claim.
B. Right to Cross-Examine and Confront Witnesses under the Sixth
Amendment, Right to Fair Trial, and Right to Trial by Jury
Petitioner also asserts that the reading of the indictment to the jury to establish that the
offense occurred prior to the return of the indictment violated his right to cross-examine and
confront witnesses under the Sixth Amendment, his right to a fair trial, and his right to a trial by
jury. Petitioner, however, procedurally defaulted these arguments by first raising them in his state
court appeal through his reply brief. As such, the Court will not address the merits of these claims
and they will be DISMISSED.
Before a habeas petitioner can seek habeas corpus relief under § 2254, he is required to
exhaust his state court remedies by fairly presenting all his constitutional claims to the state court.
28 U.S. C. § 2254 (b) and (c); Anderson v. Harless, 459 U.S. 4, 6 (1982). “The fair presentation
requirement is not satisfied when a claim is presented in a state court in a procedurally
inappropriate manner that renders consideration of its merits unlikely.” Black v. Ashley, No. 956184, 1996 WL 266421, at *1–2 (6th Cir. May 17, 1996) (citing Castille v. Peoples, 489 U.S. 346,
351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1998)); see also Long v. Sparkman, No. 95-5827, 1996 WL
8

196263, at *2 (6th Cir. April 22, 1996), cert. denied, 519 U.S. 842, 117 S.Ct. 124, 136 L.Ed.2d 74
(1996).
As set forth above, Petitioner only raised his arguments that the reading of the indictment
to the jury to establish that the offense occurred prior to the return of the indictment violated his
right to cross-examine and confront witnesses under the Sixth Amendment, his right to a fair trial,
and his right to a trial by jury with the TCCA in his direct appeal through his reply brief [Doc. 333 p. 58]. Under Tennessee law, however, Petitioner could not bring new claims in his reply brief,
as “[a] reply brief is a response to the arguments of the appellee. It is not a vehicle for raising new
arguments.” Owens v. Owens, 241 S.W.3d 478, 499 (Tenn. Ct. App. 2009). This is because
allowing an appellant to raise new arguments in a reply brief “‘would be fundamentally unfair as
the appellee may not respond to a reply brief.’” Denver Area Meat Cutters & Emp’rs Pension
Plan v. Clayton, 209 S.W. 3d 584, 594 (Tenn. Ct. App. 2006) (quoting Caruthers v. State, 814
S.W.2d 64, 69 (Tenn. Crim. App. 1991)).
A procedural default forecloses federal habeas review, unless a petitioner can show cause
to excuse his failure to comply with the state procedural rule and actual prejudice resulting from
the alleged constitutional violation. See Coleman v. Thompson, 501 U.S. 722, 732 (1991). The
fact that the factual or legal basis for an argument was not previously available may excuse a
procedural default. See Cvijetinovic v. Eberlin, 617 F.3d 833, 837 (6th Cir. 2010).
Accordingly, the Court liberally construes Petitioner’s statement that he did not know that
the State was arguing that the indictment was used as “evidence of his guilt” until he read the
appeal response brief as an argument that the Court should excuse his failure to properly raise
these arguments in his appellate brief. Well-established Tennessee law, however, provided that
the State could use the reading of the indictment to the jury to establish that the offense occurred

9

before the return of the indictment at the time Petitioner filed his appellate brief. State v. Brown,
53 S.W.3d 264 (Tenn. Crim. App. 2000). Petitioner addressed the factual and legal holdings of
this case in detail in his appellate brief, including the specific holding that the reading of the
indictment can prove that the offense occurred before the indictment [Doc. 33-1 p. 67–73]. As
such, Petitioner was clearly aware of the factual and legal basis for his claims that the reading of
the indictment to the jury to establish that the offense occurred prior to the return of the indictment
violated his right to cross-examine and confront witnesses under the Sixth Amendment, his right
to a fair trial, and his right to a trial by jury at the time he filed his original appellate brief.
Petitioner therefore procedurally defaulted these claims and they will be DISMISSED.
C. Appellate Court Misstatements
Petitioner’s last two arguments are that the TCCA misstated the appellate record by stating
that Petitioner argued that the date of the indictment’s return was read from the indictment to the
jury and stating that the date of the indictment’s return was found in the appellate record. For the
reasons set forth below, however, Petitioner is not entitled to relief on either of these claims.
1. Date of Return of Indictment in Record
First, Petitioner asserts that the TCCA’s statement that the date of the return of the
indictment is in the record was an unreasonable determination of facts. Even if this was an
unreasonable determination of the facts, however, Petitioner is still not entitled to relief on this
claim because other undisputed evidence presented at trial establishes that the offense occurred
before the return of the indictment.
As set forth above, in the section of its order regarding this claim, the TCCA relied on a
previous published Tennessee case holding that where the trial record shows that the indictment
was read to the jury and the trial record contains evidence of when the offense was committed, this

10

may be sufficient evidence to establish that the offense was committed prior to the return of the
indictment as required by Tenn. Code Ann. § 39-11-201(a)(4). State v. Flinn, No. E2009-00849CCA-R3-CD, 2013 WL 6237253, at *49–50 (Tenn. Crim. App. Dec. 3, 2013) (citing State v.
Brown, 53 S.W.3d 264, 279 (Tenn. Crim. App. 2000). Notably, the case on which the TCCA
relied appears to assume that the indictment will state the date on which it was returned. Id. at *49
(stating that “‘[[t]he] indictment itself can establish the date upon which it was returned’” and that
the reading of the indictment to the jury combined with evidence of the date on which the offense
was committed would therefore establish that the offense occurred before the return of the
indictment) (quoting State v. Brown, 53 S.W.3d 264, 279 (Tenn. Crim. App. 2000)).
Likely due to this statement in Brown, the TCCA states in its opinion that “[t]he record
shows that the indictment was returned on February 7, 2006.” Id. at *50.

It is unclear from this

statement, however, whether the TCCA meant that the date of the return of the indictment was
within the complete appellate record that was before the TCCA, or whether it meant that the date
of the return of the indictment was in the trial record and therefore evidence from which the jury
could have concluded that the offense occurred before the return of the indictment.
While at least one document in the record before this Court demonstrates that the
indictment was returned on February 7, 2006 [Doc. 31-1 p. 8], the indictment filed as an exhibit to
the trial does not contain the date on which the indictment was returned [Doc. 32-23 p. 36]. Thus,
while the date of the return of the indictment is in the record before this Court, nothing in the
record suggests that this date was ever communicated to the jury.
Even if the Court assumes that the TCCA therefore adjudicated this claim based on an
unreasonable determination that the date of the return of the indictment was in the trial court
record, however, Petitioner is not entitled to relief. Where a § 2254 petitioner demonstrates that a

11

claim was adjudicated based on an unreasonable determination of fact under § 2254(d)(2), the
petitioner must then establish that he is being held in violation of federal law. Rice v. White, 660
F.3d 242, 257 (6th Cir. 2011). Thus, the Court reviews such a claim de novo. Id.
As the trial record contained undisputed evidence that that the offense occurred before the
return of the indictment, the Court finds that Petitioner has not demonstrated that he is being held
in violation of federal law. Specifically, as set forth above, the record establishes that, when asked
about his investigation of the Beggs murder, an investigator testified that the information and
evidence gathered therein led to the indictment of Petitioner [Doc. 31-15 p. 51–52]. As Petitioner
has not pointed to any evidence in the record that would suggest that the indictment was returned
before the offense was committed, this statement is sufficient evidence from which a rational finder
of fact could determine beyond a reasonable doubt that the offense occurred before the indictment.
As such, Petitioner is not entitled to relief on this claim.
2. Reading the Indictment as Evidence of Indictment Date
Petitioner also asserts that the TCCA misstated the record by stating that Petitioner argued
that “the reading of the indictment did not make the indictment date evidence because it was
hearsay.” [Doc. 14-1 p. 26]. Petitioner asserts that this is incorrect, as his argument was that the
indictment date was not presented to the jury [Id.]. For the same reasons set forth above, however,
even if the TCCA misstated this fact, this misstatement fails to establish that Petitioner is being
held in violation of federal law. Accordingly, Petitioner is not entitled to relief on this claim
V.

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

issuance of a writ. Therefore, Petitioner’s petition for a writ of habeas corpus [Docs. 1, 14, 20]
will be DENIED and this action will be DISMISSED.

12

VI.

CERTIFICATE OF APPEALABILITY

The Court must now consider whether to issue a 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). When a
district court denies a habeas petition on a procedural basis without reaching the underlying claim,
a COA should only issue if “jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,
484 (2000). Where the court dismissed a claim on the merits, but reasonable jurists could conclude
the issues raised are adequate to deserve further review, the petitioner has made a substantial
showing of the denial of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 327, 336
(2003); Slack, 529 U.S. at 484.
After reviewing each of Petitioner’s claims, the Court finds that Petitioner has not made a
substantial showing of the denial of a constitutional right as to any claims.
Specifically, as to the procedurally defaulted claims, jurists of reason would not debate the
Court’s finding that Petitioner did not fairly present these claims to the TCCA in a manner that
rendered consideration of their merits likely and that the claims are therefore procedurally
defaulted.
Further, as to the claims that Petitioner did not procedurally default, Petitioner has not made
a substantial showing that he is in custody in violation of federal law, as undisputed evidence
presented at trial allowed a rational finder of fact to find beyond a reasonable doubt that the Beggs

13

murder occurred before the return of the indictment against Petitioner. Accordingly, a COA
SHALL NOT ISSUE.
AN APPROPRIATE ORDER WILL ENTER.
ENTER:

______________________________________
___________________________________
_
_
_
_
_
UNITED STATES DISTRICT
A S S
C
UNITED STATES DISTRICT JUDGE

14