Hodge v. Phillips
Filing
16
MEMORANDUM OPINION: Petitioner's § 2254 petition 1 will be DENIED and this action will be DISMISSED. The Court will DENY issuance of a COA. An Order Will Enter. Signed by District Judge Curtis L Collier on 3/28/19. (aws, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
SHAUN A. HODGE,
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Petitioner,
v.
SHAWN PHILLIPS,
Respondent.
No.
3:16-CV-120-CLC-HBG
MEMORANDUM OPINION
Petitioner, Shaun A. Hodge, by and through his attorney, filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his confinement under a
state-court judgment of conviction of first-degree premeditated murder (Doc. 1). Respondent filed
a response in opposition to Petitioner’s pleading, as well as a copy of the state record (Docs. 12‒
14). Petitioner filed a reply to Respondent’s response (Doc. 15).
For the reasons set forth below, Petitioner’s § 2254 petition (Doc. 1) will be DENIED and
this action will be DISMISSED.
I.
PROCEDURAL HISTORY
Petitioner was convicted by a Knox County jury of first-degree premeditated murder and
sentenced to life imprisonment with the possibility of parole. State v. Hodge, No. E2002-01794CCA-R3-CD, 2003 WL 22888892, at *9 (Tenn. Crim. App. Dec. 8, 2003), perm. app denied
(Tenn. May 10, 2004). On direct appeal, the Tennessee Court of Criminal Appeals (the “TCCA”)
affirmed the conviction. Id. The Tennessee Supreme Court (the “TSC”) denied Petitioner’s
application for permission to appeal. Id.
Petitioner filed a timely pro se petition for post-conviction relief. Hodge v. State, No.
E2009-02508-CCA-R3-PC, 2011 WL 3793503 (Tenn. Crim. App. Aug. 26, 2011), perm. app.
denied (Tenn. Feb. 15, 2012). Thereafter, counsel was appointed to represent Petitioner and filed
an amended petition. Id. Following an evidentiary hearing, the post-conviction court denied relief.
Id. The TCCA affirmed the denial and the TSC denied Petitioner’s application for discretionary
review. Id.
Petitioner, next, filed a petition for writ of error coram nobis. Hodge v. State, No. E201401005-CCA-R3-ECN, 2015 WL 4111767 (Tenn. Crim. App. Jul. 8, 2015), perm. app. denied
(Tenn. Dec. 10, 2015). Following a hearing, the coram nobis court denied relief. Id. The TCCA
affirmed the denial, and the TSC denied Petitioner’s application for discretionary review. Id.
Petitioner filed a timely petition for a writ of habeas corpus on March 14, 2016 (Doc. 1).
This matter is now ripe for the Court’s review.
II.
BACKGROUND
The TCCA summarized the facts of this case in its opinion on direct appeal as follows:
Between 8:00 and 9:00 a.m. on Sunday, April 26, 1998, Benny Boling was gunned
down in the Austin Homes Community of Knox County. Numerous residents and
visitors in the community that morning witnessed some or all of the events
surrounding the shooting. No murder weapon was ever recovered, and no forensic
evidence tied any particular suspect to the homicide. The shooting was believed
to be drug related.
During the initial stages of the police investigation, many witnesses were reluctant
to become involved or come forward with information. Approximately ten months
elapsed before the defendant was arrested and charged with one count of
premeditated first-degree murder. The state did not seek either the death penalty or
life without the possibility of parole. The defendant pleaded not guilty and invoked
his right to trial by jury.
We recount the trial evidence in the light most favorable to the state. The state
opened its proof with the testimony of Gerald Smith, a senior evidence technician
with the Criminal Investigation Division of the Knoxville Police Department.
Before joining the ranks of the Knoxville Police Department, Mr. Smith had retired
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from (sic) Tennessee Bureau of Investigation after working 27 years in the crime
laboratory.
Mr. Smith testified that he was called at 8:58 a.m. on April 26, 1998, and dispatched
to process a homicide crime scene in the area of Austin Homes near the intersection
of Mee Street and Hanson Avenue. By the time Smith arrived, the victim’s body
had been taken to the hospital. The victim’s truck had run off the road and had
come to rest at the Mee Street-Hanson Avenue intersection. The victim had
escaped from the truck and fled approximately 75 feet up a hill before collapsing
and dying.
Smith testified that he recovered a combination of seventeen nine millimeter bullet
casings and bullet fragments from the crime scene. He explained that the casings
indicated that a nine millimeter, semi-automatic handgun had fired the rounds.
Smith said that he identified a total of ten rounds of ammunition that had been fired
at the truck, five of which entered the cab of the truck. The medical examiner who
performed the autopsy turned over to Smith one bullet that had lodged in the
victim’s left leg and a bullet fragment taken from the victim’s left arm. Subsequent
testing results, to which the state and defense had stipulated, revealed that the
seventeen cartridge casings/fragments had been fired from the same type of firearm
and that markings on eight of the casings/fragments showed that they had been fired
by the same firearm.
Smith stated that no identifiable fingerprints were found inside the truck and that
no weapon was ever recovered. Another investigator at the scene turned over to
Smith a $100 bill that the victim had clutched in his hand. Smith testified that based
on the bullet holes in the truck, it was his opinion that the shots were fired at a
distance of four feet or more from a position slightly to the rear of the driver’s side
of the truck. Also, in Smith’s opinion, the nonlethal wounds to the victim’s left leg
and arm occurred while the victim was still in the truck. The victim’s body had
three other wounds, one of which was fatal. The fatal shot entered the right side of
the victim’s back and exited the front of the chest. Smith was unable to determine
which, if any, of the recovered bullet fragments was the fatal bullet.
Doctor Sandra Elkins, Knox County’s Medical Examiner, testified and
corroborated Smith’s identification of the fatal gunshot wound with an entry point
on the right side of the victim’s back and an exit point on his chest to the left and
slightly upward approximately seven inches. Most of the other gunshot wounds
that the victim sustained were to the back of his left buttocks and the left leg area;
none of the entry wounds were on the front of the victim’s body. Doctor Elkins
reported that a drug and alcohol screen of the victim’s blood showed the presence
of a low concentration of alcohol but a high concentration of cocaine.
The state called four witnesses who identified the defendant as the shooter. The
theory of defense was that these witnesses had either accidently or intentionally
identified the wrong person. The state’s witness Debra Turner was in the latter
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category. Turner had lived for five years at Apartment 161, 1283 Nelson Circle.
Her apartment faced Hanson Avenue.
Turner testified that she had known the defendant, whose nickname was “Fat
Shawn,” most of her life. The defendant formerly lived in Austin Homes, and at
the time of the shooting, his grandmother resided in Austin Homes. Turner said that
she saw the person who killed the victim. Turner stated that she did not know the
victim and had never seen him before the day of the shooting.
Turner testified that shortly before the shooting, she was in her kitchen making
preparations for Sunday dinner. She said that she heard voices and an argument
outside her back door. Turner claimed that she heard one voice saying, “Dude, you
will not leave these projects alive if you don’t buy this damn dope from me.”
Turner gave conflicting testimony whether her back door was open or closed at the
time, but at any rate, she stepped to the back door and looked outside. Turner stated
that she saw the defendant talking to a white male who was sitting inside a parked
truck. The defendant was wearing blue jeans and a “black hoody.” Turner testified
that she heard the man in the truck tell the defendant that he “did not come to buy
no drugs,” and then she heard a gunshot and saw the truck moving away from the
scene. Turner said that the defendant followed the moving truck and fired into it.
The truck hit a fence and stopped. Turner related that the man then jumped out of
the truck, and as he was running across the street, the defendant fired at the man.
According to Turner, after the man fell, the defendant “stood over him and shot
him.” Turner described how she watched what happened first from her back door
and then from the side and front windows in her apartment. Turner testified that
she never heard the victim threaten the defendant and did not see any weapon in
the victim’s possession.
After the police arrived at the scene, officers began questioning people in the area
about the shooting. Turner admitted that she told officers that she had not seen
anything, but she insisted that later that night she made a telephone call and
anonymously reported what she knew about the crime. It was not until February 9,
1999, that she came forward, gave a statement to the police, and identified the
defendant from a photo spread.
On cross-examination, the defense elicited that Turner had two prior theft
convictions. The defense also vigorously cross-examined Turner about the line of
sight at her back door and windows and about the location of the truck when she
first saw it. Turner amended her earlier testimony and stated that when she first
saw the victim, he was outside of the truck talking to Tim Bolden, whose nickname
was “Tim Dog.” She next saw the defendant approach and threaten the victim, and
the shooting began. Turner said that she did not know where Bolden had gone after
the first shot was fired.
Turner stated that the reason she did not initially talk with the police officer at the
scene was that the defendant was standing nearby at the time and that she was afraid
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of him. When Turner finally talked with the police, she called them from the
University of Tennessee Medical Center. Detectives came to the hospital,
transported Turner for questioning, and then took her back to the hospital. Turner
admitted that she was at the hospital with her son who had been seriously injured
when the defendant and two other men “jumped on him and beat him with a bat.”
At the time Turner testified, the assault case against the defendant was still pending.
Turner agreed that she was angry with the defendant because he had injured her
son, and in the statement given to the detectives, she said that she had decided to
come forward because her son had been beaten.
Turner maintained that she had not accused the defendant in retaliation for her son’s
injuries. She denied using cocaine in her apartment with a man named Curry Dixon
when she learned about the beating, and she denied telling Dixon that she would
“mess” the defendant up because of what he had done to her son. She also denied
making any similar statement to the defendant’s cousin, Taiwan Fowler.
Patricia Hamilton also identified the defendant as the shooter. Hamilton lived in
Georgia at the time of the crime but was visiting with relatives in Knoxville and
staying with her cousin, Debra Turner. Hamilton admitted that she had a prior
conviction for selling cocaine and was on probation. Hamilton recalled being
downstairs, sitting and talking to Turner when the “commotion” began. Hamilton
said that she asked Turner if someone was firing a gun. She testified that Turner
peeped out of the window and reported that “Fat Shawn” was shooting. Hamilton
was certain of the identification because she had known the defendant all of her
life. Hamilton also looked out of the window; she saw the victim get out of the
truck and run toward the daycare center up the hill with the defendant in pursuit
shooting at the victim. Hamilton said that she did not want to get involved in the
police investigation and, therefore, stayed inside the house.
A third witness who lived in Austin Homes and identified the defendant as the
shooter was Lorraine Young. Young lived at 1240 Nelson Circle, Apartment 187.
She knew the defendant and was friends with Debra Turner. Young testified that
she was awake Sunday morning but lying in bed when she heard a commotion and
went to her bedroom window. Young testified that she saw the defendant and three
other boys near the victim’s truck having an argument about “dope and money.”
Young identified one of the other boys by the nickname “Country.” Young said
that she heard the victim tell the boys that he did not want any more drugs because
he had spent all of his money, and she heard the defendant respond that “you’re
gonna buy my dope or else.” At that point, Young put on some clothes and went
to the back door in time to see the victim wreck his truck and flee on foot while the
defendant shot the victim.
Young said that after the victim fell and the shooting stopped, the defendant came
to her door and wanted to come inside the apartment. When Young declined to
grant him entry, the defendant walked away. Young testified that the defendant
had a gun in his hand when he came to her door. Young testified that she recalled
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seeing the victim on Saturday evening when he drove into the neighborhood and
purchased drugs from a man who Young identified as “Grill.”
On cross-examination, Young testified that on the morning of the shooting she was
in bed with her boyfriend. The defense examined her closely about the view out of
her bedroom window. Young had given the police a statement in which she said
that she and her boyfriend were in bed drunk, but at trial she denied being
intoxicated or making that statement to the police. Young did admit that at first she
told the detectives that she did not know anything and could not identify the shooter.
Young elaborated further that she had seen the victim drive into the neighborhood
and purchase drugs approximately five times on Saturday.
Two additional witnesses who testified for the state were Albert Banks and Keesha
Towns. Towns lived in Austin Homes when the shooting occurred, and she knew
the defendant. Towns was on her back porch Sunday morning and saw
approximately eight men gambling on the porch of the apartment directly across
from where she was standing. The defendant and Tim Bolden were among the
gamblers. Towns testified that “an incident or argument or something broke out
and everybody took off running.” Towns heard gunshots, but she did not actually
see anything happen. She was uncertain whether the defendant had a gun.
Banks testified that he was sleeping in his mother’s apartment when he awoke to
gunshots on Sunday morning. He peeped out of the window next to the bed and
saw a person he did not know shooting a gun. Banks could not recall what the
shooter was wearing, and he did not see at whom or what the person was shooting.
The final witness in the state’s case in chief was Tim Bolden, known as “Tim Dog.”
At the time of his testimony, Bolden was serving an incarcerative sentence for
voluntary manslaughter, and he had pending drug and reckless endangerment
charges. Bolden testified that the state had agreed to a sentence of four years on the
pending charges, to run consecutively to his ten-year voluntary manslaughter
sentence, in exchange for his truthful testimony.
Bolden testified that he lived in Austin Homes and knew the defendant from the
neighborhood. Bolden explained that he was selling drugs in the area on Saturday
when the victim spent approximately $600 to $800 on crack cocaine. According to
Bolden, the victim made multiple trips into the neighborhood that day to purchase
crack cocaine from Bolden. The last time the victim left was around 2:30 or 3:00
on Sunday morning.
Bolden testified that at 5:00 or 6:00 a.m. he saw the defendant. Bolden was
gambling with four or five other men, and the defendant joined them. Later, the
victim once again drove into the neighborhood, but Bolden did not approach the
truck. Instead, the defendant walked toward the truck. Bolden testified that he
heard the victim’s loud voice, saw the victim pulling out in his truck, and saw the
defendant firing a gun. The defendant, Bolden maintained, was the only person
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shooting and the only person who had a gun. Bolden testified that he also saw the
victim’s truck run up on a curb, the victim leave the truck and flee, the defendant
continue to shoot, and the victim fall. To Bolden’s knowledge, the victim was not
armed. Bolden explained that after the shooting stopped, everyone tried to disperse
because they knew the police would arrive shortly.
The police captured Bolden and transported him to the police station for
questioning. Bolden admitted that at first he did not tell the detectives the truth.
Bolden stated that later, however, while he was still in custody, he told the truth
that the defendant shot the victim. Asked to explain why he decided to tell the
police about the defendant’s involvement, Bolden testified, “I really guess I felt that
I-I didn’t want to take the blame for it basically. That’s the basic answer really. I
didn’t want to take the blame for it.”
Not surprisingly, the defense aggressively cross-examined Bolden, covering
credibility issues such as testifying in exchange for sentencing leniency and
wanting to avoid being charged with the homicide. The defense also highlighted
inconsistencies between Bolden’s statements to the police and his trial testimony,
particularly as related to location and street names.
The defendant did not testify, but he offered the testimony of nine witnesses.
Renee Stone, who was living in Austin Homes at the time of the shooting, testified
that she was driving home the morning of the shooting when a woman stopped her
and advised her of the shooting. Stone drove up the hill in front of the daycare
center and saw a man lying on his stomach on the ground. Stone went to her
apartment and called 911. When she walked back to the scene, the paramedics were
arriving. Stone did not witness the shooting or hear any gunshots.
Latroy Askew, who was serving an incarcerative sentence for reckless
endangerment and aggravated assault, testified that the night before the shooting he
and the defendant rode around all night in Austin Homes. The next morning,
Askew recalled being around a group of men gambling, including the defendant
and Bolden. According to Askew, the defendant was wearing a yellow sweater
with a hood, and Bolden was dressed in black. Askew said that he and the defendant
left about the same time, before the shooting. The defendant mentioned going home
or to his girlfriend’s house. On cross-examination, Askew agreed that he and the
defendant were good friends. Askew could not recall what day of the week that the
shooting occurred, and he admitted that he was aware of other shootings in Austin
Homes.
Defense witness Glenda Ward did not live in Austin Homes and was not familiar
with or related to any of the witnesses in the case. In April 1998, Ward was living
in Town View Apartments across from Austin Homes on Summitt Hill. Ward
testified that she could see the daycare center in Austin Homes from her apartment.
Ward recalled that she happened to be looking out of her window one morning and
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saw one man chasing another man. Ward said that the man in the lead was trying
to run up the hill, and the other man shot him. Ward saw the man who was shot
fall down, and she saw the shooter run in the oppositive direction toward Austin
Homes. Ward described the shooter as about six feet tall, 190 pounds, and wearing
dark clothing. Ward said that she did not get a good look at the face, but she knew
“he was like dark-skinned, dark complected.” The defendant then stood up in the
courtroom, and defense counsel asked Ward if the defendant was the shooter. Ward
said that the defendant was not who she saw.
The state sought to discredit Ward’s testimony by challenging what she could have
seen from her apartment. The police interviewed Ward in 1998 as part of the
shooting investigation, and she advised the officers that she witnessed the murder
but could not identify the shooter. At that time, Ward described the shooter as a
black man dressed in a dark hooded jacket with dark pants. At trial, Ward agreed
that she did not mention the shooter’s skin tone previously, but she insisted in
response to state questioning that from where she was standing, and even though
the shooter had the hood of his jacket over his head, she could see the shooter’s
skin tone, which was dark, not light.
Defense witness Reginald Woodruff testified that he had grown up with the
defendant in Austin Homes. At the time of the shooting, Woodruff was living in
Town View Apartments across from Austin Homes. Woodruff testified that he was
home with his son on the morning of the shooting. The defendant, Woodruff said,
came to his apartment dressed in a gold pullover sweater jacket. Woodruff stated
that the defendant did not have a weapon with him, and Woodruff recalled that the
defendant was acting as if something was wrong. About five or ten minutes later,
Malik Hardin showed up at the apartment to play video games with Woodruff.
Woodruff estimated that the group stayed in his apartment two hours. After Hardin
left, Woodruff said that he, his son, and the defendant left to get something to eat.
On cross-examination, the state exploited the witness’s inability to recall when the
events occurred, other than possibly on a Sunday. Woodruff was certain that the
year was 1998, and he believed it was around the end of the year, after
Thanksgiving. The state also tried to raise questions about Woodruff’s memory in
terms of recalling what the defendant was wearing. Woodruff insisted that he
specifically recalled the gold-type sweater jacket “because [his] son kept calling
him big bird.”
Austin East High School student Pierre Jarrett was thirteen years old at the time of
the shooting. On the day of the crime, he was playing basketball in the Austin
Homes neighborhood, and he saw a gray truck going up the hill by the daycare
center. The truck turned, and Jarrett said that he heard approximately ten gunshots.
Jarrett testified that at the sound of the shots, he looked up the hill and saw that the
truck had come to rest with the passenger side door open. Jarrett stated that he also
saw a man dressed in black who had a gun. Jarrett told the police what he had seen
when he was interviewed. Jarrett said that he was positive that the defendant was
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not the man he saw with the gun in his hand. The state cross-examined Jarrett to
bring out inconsistencies between his testimony and his police statement, including
the differences in how he had described the shooter.
Paul Chandler was almost caught in the gun fire on Sunday morning. This 70-yearold witness was retired from the United States Army after 24 years of service. He
lived within walking distance of Austin Homes, where he frequently went to collect
discarded cans to later sell. Chandler testified that he was at the top of the hill near
the daycare center. He set down a garbage bag of cans and lit a cigarette. Chandler
said that he heard a vehicle and shooting. He explained that he could not see who
was doing the shooting and that he was afraid to move. Chandler believed that if
he had not stopped to take a break, he would have been between the truck and the
shooter. Chandler testified that he saw the victim get out of the truck, run past him,
turn a corner, and then collapse.
Chandler described the shooter as tall and thin and wearing a brown cap and jacket.
When the police arrived, Chandler pointed out the direction in which the shooter
headed. At trial, Chandler said that as the shooter walked off, Chandler heard him
say, “I got him.” The defendant stood up in the courtroom, and Chandler stated
that the defendant was not the shooter. The state questioned Chandler at length
about a photo spread he was shown by the police; evidently, he had identified as
the shooter a man who was in prison at the time of the shooting. The state also
elicited from Chandler that the shooter he saw was carrying a .357 Magnum
handgun.
The defense called two witnesses who testified specifically about Debra Turner and
statements she had made about identifying the shooter. The first witness, Curry
Dixon, was serving a sentence for robbery. He had known the defendant all his
life. Dixon testified that one evening he and Turner were smoking crack at her
house. Dixon recalled that someone knocked on the door and advised Turner that
her son had been beaten. Turner left and returned a short time later. Dixon stated
that when she returned, Turner threatened that she was going to implicate Fat
Shawn in a murder, even though the defendant was not involved.
Defense witness Taiwan Fowler related a similar conversation that he had with
Turner. Fowler was related to the defendant but had never lived in Austin Homes.
Fowler testified that he had known Turner for several years and that he did not
believe her to be truthful. Fowler said that he had spoken to Turner within the past
year and that she was going to give an untruthful statement to get back at the
defendant for putting her son in the hospital.
The final defense witness was Malik Hardin, the defendant’s cousin. He testified
that he was with the group of men gambling on the porch of the apartment in Austin
Homes early Sunday morning. Hardin said that the defendant was present also
gambling. A truck drove into the area, and Hardin recognized it and the man
driving because Hardin and “Tim Dog” had been selling the man drugs the previous
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evening. Hardin related how the shooting began. He stated that he, “Tim Dog,”
and a third man, “Wutang,” were walking toward the truck. “Tim Dog” asked the
other two men to “back him” because the man in the truck had “shorted him for
money.” Hardin said the victim had a $100 bill and that Hardin was “about to serve
him” when “Tim Dog” pulled out a gun, told the other two to back up, and started
shooting. Hardin ducked to the ground; he said that he heard five to seven shots
and then took off running. While running, Hardin heard approximately eight more
shots.
Hardin testified that the last time he saw the defendant, the defendant was still
gambling. Hardin ended up first at a crack house, and then he encountered Reginald
Woodruff. Hardin stated that the two men went to Woodruff’s house where the
defendant and Woodruff’s son already were. Hardin did not recall how the
defendant was dressed. Around noon, Hardin left Woodruff’s house; the defendant
was still there. Hardin said that he was going to his sister’s place in Austin Homes.
His visit, however, was interrupted by the police who took him into custody.
Hardin stated that he could not recall giving a statement to the police.
The state cross-examined Hardin about his prior record, which included two felony
drug convictions and two attempted robbery convictions. In addition, Hardin was
currently serving a federal sentence involving a gun charge. The state questioned
why Hardin did not come forward with the information earlier. Hardin responded
that he was not a “snitch” and that he was fearful of what might happen to his
family. Hardin said that he had changed his mind because his grandmother had
since died and most other family members were now in jail. The state again took
Hardin through the events leading up to the shooting. Hardin insisted that the
victim came “to buy dope” and was about to spend $100 when “Tim Dog”
intervened and began shooting.
In rebuttal, the state called Officer Russell Whitfield of the Criminalistics Division.
He identified various photographs that he had taken showing different parts of the
Austin Homes area. Officer Whitfield also testified that he went into a third-floor
apartment in Town View Apartments and took photographs in the direction of Mee
Street. Although it is difficult to follow Officer Whitfield’s testimony, it appears
that his testimony was offered in an effort to contradict the testimony of the defense
witnesses who testified that they had seen the shooting from their respective
residences in Town View Apartments.
Hodge, No. 2003 WL 22888892, at *1–8.
The opinion of the TCCA affirming the decision of the post-conviction court contains a
recitation of the evidence presented at the evidentiary hearing held by the post-conviction court
and summarizes the testimony heard from Petitioner’s trial counsel and numerous other witnesses
10
in that proceeding. Hodge, 2011 WL 3793503; Hodge, 2015 WL 4111767. To the extent the facts
and evidence from Petitioner’s post-conviction relief hearings are relevant to the claims raised by
Petitioner in his § 2254 petition, they will be addressed in more detail below in the analysis of
those specific claims.
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.
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Under 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 fair-minded
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.
PETITIONER’S ALLEGATIONS
Petitioner’s § 2254 habeas corpus petition raises the following claims for relief:
(1) Whether Petitioner received ineffective assistance of counsel;
a. Was counsel ineffective for failing to obtain the mental health records of
Lorraine Young;
b. Was counsel ineffective for failing to interview Tim Bolden without an audio
recording device; and
c. Was counsel ineffective for failing to provide “meaningful representation” due
to a conflict of interest;
(2) Did the State withheld material, exculpatory evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963).
(See Doc. 1).
V.
INEFFECTIVE ASSISTANCE OF COUNSEL
The Sixth Amendment provides, in pertinent part, that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const.
Amend. VI. A defendant has a Sixth Amendment right not just to counsel but to “reasonably
effective assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish
ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient
and that the deficient performance prejudiced the defense so as to render the proceedings unfair
and the result unreliable. Id. In assessing counsel’s performance, a court must presume that
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counsel’s questioned actions might have been sound strategic decisions and must evaluate the
alleged errors or omissions from counsel’s perspective at the time the conduct occurred and under
the circumstances of the particular case. Id. at 689; see also Vasquez v. Jones, 496 F.3d 564, 578
(6th Cir. 2007) (“[S]trategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable[.]”) (quoting Strickland, 466 U.S. at 690). Only
when the challenged actions are “outside the range of professionally competent assistance” will
counsel’s performance be considered constitutionally deficient. Strickland, 466 U.S. at 690.
To demonstrate prejudice, a petitioner must show “a reasonable probability that, but for
[counsel’s acts or omissions], the result of the proceedings would have been different.” Strickland,
466 U.S. at 694. “An error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id.
at 691; see also Smith v. Robbins, 528 U.S. 259, 285-86 (2000). On balance, “[t]he benchmark for
judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the [proceedings] cannot be relied on as having
produced a just result.” Strickland, 466 U.S. at 686.
When a petitioner raises an ineffective-assistance-of-counsel claim in a § 2254 petition, the
Court must review the state court’s ruling on that claim under AEDPA’s highly deferential
standard. Thus, in order to succeed on a federal claim of ineffective assistance of counsel, a habeas
petitioner must demonstrate that the state court’s ruling on his-ineffective-assistance-of-counsel
claim was an unreasonable application of Strickland. Bell v. Cone, 535 U.S. 685, 693–94 (2002).
“Surmounting Strickland’s high bar is never an easy task,” and “[e]stablishing that a state court’s
application of Strickland was unreasonable under § 2254(d) is all the more difficult.” Harrington,
562 U.S. at 105 (citing Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). The question under
13
Strickland, is not whether this Court believes the State court’s determination was incorrect, but
whether that determination was unreasonable. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
A.
Was the trial counsel ineffective for failing to obtain the mental health
records of Lorraine Young?
Young was a witness for the State who testified that she saw Petitioner shoot the victim.
Young has extensive mental health records which were not produced or discovered by either
counsel for the state or defense at trial (Doc. 12-20 at 109). Petitioner claims his conviction and
sentence are void because trial counsel was ineffective for failing to obtain Young’s mental health
records (Doc. 1). Petitioner asserts that trial counsel’s pretrial discovery request, specifically
requested Young’s mental health records; however, he did not seek an order compelling such
disclosure (Doc. 1 at 52). Additionally, Petitioner argues that unlike post-conviction counsel, trial
counsel took no independent action to secure Young’s mental health records, either via a court
order or interviewing Young (id.).
Following an evidentiary hearing on this issue, the state post-conviction court rejected this
ineffective assistance of counsel claim finding that trial counsel was not deficient and that
Petitioner suffered no prejudice (Doc. 12-20 at 107). Extensive proof at the post-conviction
hearing was presented regarding Young’s mental health records which indicate depression,
thought disorders, suicidal and homicidal ideations and sleep disorders as well as physical
problems (id.). Nowhere in the record did Young receive treatment or complain of mental health
issues at or around the time of the offense itself (id.). Although she did receive treatment at the
time of trial and had had significant stressors, her testimony was found to be clearly given (id.).
She was effectively cross-examined at trial and there is no showing that her mental health problems
impaired her ability to recall or her testimony (id.).
The TCCA affirmed the post-conviction court’s finding and addressed this issue as follows:
14
The petitioner’s first claim is that his trial counsel was ineffective for failing to
obtain and use the mental health records of Ms. Lorraine Young. Prior to trial, the
petitioner’s trial counsel requested that the State turn over any mental health records
relating to any of the State’s witnesses, including Ms. Young. The prosecutor
responded by advising trial counsel that she was not aware of Ms. Young ever
receiving treatment for mental health issues. The petitioner’s counsel also
attempted to contact Ms. Young by telephone and interview her prior to trial.
However, she refused to speak with him.
The petitioner argues that these attempts to obtain Ms. Young’s mental health
records were constitutionally insufficient. The petitioner argues that trial counsel
should have conducted an inquiry into Ms. Young’s mental health history similar
to the one done by postconviction counsel. However, we disagree. There appears
to be no reason in the record for trial counsel to have suspected that Ms. Young
suffered from mental health problems. Although the petitioner had known Ms.
Young for a period of many years, it does not appear from the record that the
petitioner raised the issue of Ms. Young’s mental health issues with his trial
counsel. Without something in the record to indicate that his trial counsel was
placed on notice that Ms. Young suffered from any significant mental health
problems, we do not believe that trial counsel fell below an objective standard of
reasonableness in failing to investigate this issue further. Trial counsel’s
performance here has not been shown to be deficient.
Hodge, 2011 WL 3793503, at *4–5.
This Court finds that the state court correctly identified and applied Strickland to address
this claim, and the record supports the state court’s conclusion. Petitioner acknowledges that trial
counsel requested Youngs mental health records prior to trial1 and when those records were not
produced by the State counsel he sought to compel their disclosure2. Trial counsel testified in the
post-conviction evidentiary hearing that both himself and an investigator attempted to speak with
Young, but she refused to talk because “the DA told her not to talk to [trial counsel]” (See Doc.
12-21 at 33, 57).
1
See Motion for Discovery, Inspection, and Notice of Intent to Use Evidence, Doc. 12-1
p. 15-18.
2
See Motion to Compel, Discovery and, in the Alternative for Sanctions, Doc. 12-1 p. 45-
46.
15
Petitioner argues that the timing of trial counsel’s discovery requests “suggests” that trial
counsel became aware of Young’s issues prior to trial (Doc. 1 at 52). The TCCA, however, found
otherwise stating that “[w]ithout something in the record to indicate that his trial counsel was
placed on notice that Ms. Young suffered from any significant mental health problems, we do not
believe that trial counsel fell below an objective standard of reasonableness in failing to investigate
this issue further.” Hodge, 2011 WL 3793503, at *5. Further, nothing in the records indicates
how Young’s alleged mental impairments affected her perception or testimony at trial. On the
contrary, the records show that Young’s testimony was clear and that she was effectively crossexamined at trial. Thus, Petitioner has not provided sufficient evidence to satisfy the second prong
of Strickland to show that the outcome of his trial would have been different had trial counsel
obtained Young’s mental health records.
Accordingly, this Court finds that Petitioner has not met his burden of demonstrating that
he is entitled to relief on this claim as he has not provided any evidence to diminish the deference
owed to the state court’s factual findings under § 2254(d). Petitioner may disagree with the result
reached by the state courts, but he failed to describe how the state court’s adjudication of his claim
was anything other than reasonable under the Strickland standard. Based on this Court’s review
of the record, the state court’s decision met the AEDPA standard of review because it was not
contrary to and did not involve an unreasonable application of clearly established federal law, and
it was not based on an unreasonable determination of the facts in light of the evidence presented
in state court proceedings.
B.
Was the trial counsel ineffective for failing to make an audio recording of his
interview with a witness?
Petitioner contends that trial counsel was ineffective because he interviewed a witness,
Timothy Bolden, without a recording device or a third-party present (Doc. 1 at 53).
16
The defense’s theory of the case was that the prosecution’s four eyewitness identifications
were erroneous and that Bolden may have been the actual killer. Hodge, 2011 WL 3793503, at
*2. Trial counsel met with Bolden at the detention center prior to trial. In this first meeting,
Petitioner alleges that Bolden made comments that would affirm their defense that Petitioner did
not shoot the victim (Doc. 1 at 54). During a second meeting, Bolden told trial counsel that he did
not want to talk about the incident anymore and that he would not be testifying (Id.). However,
Bolden did testify and his trial testimony directly implemented Petitioner as the shooter (Id.).
Thereafter, trial counsel examined the “unusual possibility” of personally taking the stand
to testify concerning inconsistencies between Bolden’s courtroom testimony during the State’s
case and prior statements that Bolden had allegedly made to him at an unrecorded prison meeting.
Hodge, 2011 WL 3793503, at *2. Trial counsel had availed himself of the opportunity to crossexamine Bolden concerning inconsistent statements while the witness was still on the stand, but
Bolden had claimed under oath that he could not recall making any of them. Id. After considering
the matter, the trial court gave trial counsel permission to testify regarding his meeting with
Bolden. However, after consulting with Petitioner, trial counsel decided not to take the stand,
explaining that Bolden had not been a credible witness and that opening himself up to crossexamination would not be in Petitioner’s best interests. Id. Petitioner testified that, at the time the
decision was made, he agreed with trial counsel’s decision not to testify (Doc. 12-31 at 69).
The TCCA addressed this issue as follows:
The petitioner next claims that his trial counsel was ineffective for interviewing
Tim Bolden without bringing a third-party witness or making an audio recording of
the interview. Because he failed to bring a witness or recording device to the
interview, the petitioner claims that trial counsel was unable to effectively crossexamine Mr. Bolden at trial with inconsistent statements that he made during his
interview.
17
However, the record does not establish that the petitioner’s former trial counsel was
deficient in his performance with respect to this interview. According to the
testimony of the petitioner’s trial counsel at the post-conviction hearing, counsel
intentionally chose to entice Mr. Bolden to speak to him by offering to come alone
and not to tape the interview. Although interviewing under those circumstances
would likely render it difficult to impeach Mr. Bolden in the future with any
inconsistent statements, speaking to the witness in this unrecorded fashion could
have potentially been very helpful to trial counsel in developing the petitioner’s
case and trial strategy. Moreover, according to his testimony, trial counsel hoped
to bring witnesses and/or tape Mr. Bolden at subsequent interviews after gaining
Mr. Bolden’s trust. However, Mr. Bolden contacted the petitioner’s trial counsel
some days after the initial interview and advised him that he was not going to talk
further with him about the crime. Consequently, although his strategy ultimately
failed, trial counsel’s decision to attend Mr. Bolden’s interview without a witness
or recording device does not appear to us to have been deficient at the time it was
made.
Hodge, 2011 WL 3793503, at *5.
This Court finds that the state court’s adjudication on this issue was not contrary to or an
unreasonable application of clearly established federal law, nor was it based on an unreasonable
determination of the facts in light of the evidence before the state court. At the time trial counsel
conducted his interview with Bolden (who had two felony cases pending) Bolden’s attorney only
agreed to the interview if counsel went alone and did not tape the interview (Doc. 12-21 at 38).
After speaking with Bolden, trial counsel contacted Bolden for a second meeting and planned to
tape Bolden’s statements if they were consistent with what he said in the first interview (id.).
However, during this second interview, Bolden advised trial counsel that he “wasn’t going to talk
anymore about it, he was not going to testify.” (Id.). Thus, trial counsel never had the opportunity
to record Bolden’s statements.
Here, Petitioner failed to meet his burden of proof to refute the presumption of correctness
offered to the state court’s finding that the decision not to record the initial interview was strategic
in order to build the witness’s trust under these circumstances. And it was further, not deficient of
18
trial counsel to not testify at trial in order to avoid opening himself up to cross-examination.
Accordingly, Petitioner is not entitled to relief on this claim.
C.
Was the trial counsel ineffective due to conflict of interest?
Petitioner claims that trial counsel was ineffective for not withdrawing when a conflict
arose between himself and Petitioner due to complaints Petitioner made against trial counsel in the
trial court and before the Board of Professional Responsibility (Doc. 1 at 62). Petitioner asserts
that he filed a “Motion for Dismissal of Attorney of Record”, along with four letters following up
on his request for a new attorney (id. at 63). In addition to the letter sent to the Court, Petitioner
also sent a letter to the Knoxville Bar Association and the Tennessee Board of Professional
Responsibility expressing complaints against trial counsel (id.). Petitioner complains that the trial
judge never conducted a hearing or inquired about Petitioner’s dissatisfaction with his counsel
(id.).
Petitioner challenged the effectiveness of his trial counsel on this issue during his state
post-conviction proceedings and, following an evidentiary hearing, the post-conviction court
rejected the claim. The TCCA affirmed the post-conviction court’s finding and addressed this
issue as follows:
Finally, the petitioner claims ineffective assistance of counsel because his trial
counsel failed to withdraw after the petitioner wrote a letter to the Board of
Professional Responsibility (the “Board”) and several letters to the trial court
complaining about his counsel’s representation prior to trial. However, we have
previously indicated that trial counsel is not required to withdraw representation
merely because a client has filed a complaint against him with the Board. See
Quentin Lewis v. State, No. W1998–00793–CCA–R3–PC, 2001 Tenn. Crim. App.
LEXIS 52, ––––11–12, 2001 WL 55635 (Tenn. Crim. App. Jan. 23, 2001) (holding
trial counsel’s performance was not rendered constitutionally deficient by virtue of
her failing to request to withdraw after appellant filed a complaint against her with
the Board); Cf. State v. Richard Higgs, No. W2000–02588–CCA–MR3–CD, 2002
Tenn. Crim. App. LEXIS 667 at ––––6–10, 2002 WL 1841697 (Tenn. Crim. App.
Aug. 5, 2002) (although three complaints had allegedly been filed with the Board
concerning trial counsel by the defendant at the time of trial, the defendant had “not
19
provided this Court with sufficient information to determine that there existed a
conflict of interest requiring defense counsel’s withdrawal”). Any rule that would
essentially permit a defendant to automatically discharge his appointed counsel
simply by raising written complaints would inevitably become the subject of
delaying tactics and abuse. Cf. State v. Willis, 301 S.W.3d 644, 652 (Tenn. Crim.
App. 2009) (wherein “[t]he defendant used the tactic of . . . filing complaints against
[his lawyers] with the Board of Professional Responsibility as a means of coercing
the court into discharging counsel and . . . the pattern was for the tactic to be
employed as trial dates approached”). With respect to the subject matter of the
defendant’s complaint, we view the defendant’s act of filing a complaint with the
Board as merely raising an allegation of wrongdoing against his attorney. To
succeed on an ineffective assistance of counsel claim, however, the defendant must
show clear and convincing evidence of actual conduct that would require counsel
to withdraw and the resulting prejudice. The petitioner has failed to do so.
Hodge, 2011 WL 3793503, at *5.
In his § 2254 petition, Petitioner argues that the trial court’s order on post-conviction
misstated the facts and misapplied the law (Doc. 1 at 65). Petitioner claims that the trial judge’s
failure to conduct an inquiry and, thereafter, to appoint Petitioner new counsel, was a violation of
clearly established federal law and resulted in Petitioner being denied meaningful representation
by counsel (Id. at 67). He further argues that trial counsel should have been dismissed as his
attorney of record when he became a witness for the defense (Id.).
However, Respondent highlights some important facts seemingly left out of Petitioner’s
argument. Specifically, that trial counsel testified at Petitioner’s post-conviction hearing that he
met with Petitioner seventy-seven times in three years and that he and Petitioner got along well
(Doc. 14 at 25, citing Doc. 12-21). Counsel also testified that there was no breakdown in
communication with Petitioner that he felt would have necessitated his withdrawal as counsel (id.).
Counsel further testified that he had never had a bar complaint filed against him and Petitioner
failed to produce any testimony at the post-conviction hearing to dispute trial counsel’s testimony
(id. citing Doc. 12-21). After a review of the record, this Court agrees that the state court’s
adjudication on this issue was proper in finding that nothing in the record indicates that the
20
attorney-client relationship between Petitioner and trial counsel was “irretrievably fraught with
irreconcilable conflict or lack of communication, such that trial counsel could no longer provide
Petitioner with professionally constitutionally adequate representation” (id. at 25).
This Court finds that Petitioner has not met his burden of demonstrating that he is entitled
to relief on this claim as he has not provided any evidence to diminished the deference owed to the
state court’s factual findings under § 2254(d). As explained by the state court, the mere act of
filing a complaint with the Board merely raises an allegation of wrongdoing but in no way
establishes that counsel had an actual conflict of interest which prevented him from properly
performing his duties. Hodge, 2011 WL 3793503, at *5, citing Tenn. R. Sup. Ct. 8.
Further, Petitioner complains that a conflict of interest also arose when “[trial counsel]
became essential defense witness” (Doc. 1 at 67). However, this argument is moot based on the
above analysis regarding trial counsel strategic decision to forego testifying against Bolden.
Petitioner improperly raises false argument when he states that trial counsel made the decision not
to testify regarding his interview with Bolden “without informing [Petitioner] of any other options,
without receiving [Petitioner’s] input, and without receiving [Petitioner’s] informed consent”
(Doc. 1 at 68). A review of the records shows that Petitioner testified that, at the time the decision
was made, he had discussed the issue with trial counsel agreed with trial counsel’s decision not to
testify (Doc. 12-31 at 69).
Based on the evidence available in the record, the state court’s decision followed the
application of law found in Strickland. This Court finds that the analysis of the state-court was
not contrary to and did not involve an unreasonable application of clearly established federal law,
nor was it based on an unreasonable determination of the facts in light of the evidence presented
in state court proceedings. Accordingly, Petitioner is not entitled to relief on this claim.
21
VI.
BRADY CLAIM
Petitioner argues that the state withheld favorable evidence that could have
supported his defense‒specifically, when it failed to disclose the mental health records of
Lorraine Young‒and that the failure to disclose these records violated Brady v. Maryland,
373 U.S. 83 (1963), (Doc. 1. at 70).
The Due Process Clause of the Fourteenth Amendment requires that the state
disclose to criminal defendants “evidence that is either material to the guilt of the defendant
or relevant to the punishment to be imposed.” California v. Trombetta, 467 U.S. 479, 485
(1984) (citing Brady, 373 U.S. at 97)). “Even in the absence of a specific request, the
prosecution has a duty to turn over exculpatory evidence that would raise a reasonable
doubt about the defendant’s guilt.” Trombetta, 467 U.S. at 485 (quoting United States v.
Agurs, 427 U.S. 97, 112 (1976)).
To establish a Brady claim, a petitioner must show that the state withheld
exculpatory evidence material to either the petitioner’s guilt or punishment. Brady, 373
U.S. at 87. The Supreme Court has articulated three components of a Brady violation:
“The evidence at issue must be favorable to the accused, either because it is exculpatory,
or because it is impeaching; that evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S.
263, 281–82 (1999). Evidence is material “if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different.” Youngblood v. West Virginia, 547 U.S. 867, 870 (2006) (internal quotation
marks omitted).
“A reasonable probability is a probability sufficient to undermine
confidence in the outcome” of the proceeding. Pennsylvania v. Ritchie, 480 U.S. 39, 57
(1987) (internal quotation marks omitted).
22
Petitioner filed an amended petition for post-conviction relief claiming, inter alia,
that prosecutors failed to “provide to the petitioner any records concerning Ms. Young
which relate to her mental health or substance abuse treatment at [Lakeshore Mental Health
Institute].” (Doc. 12-19.) Following the post-conviction court’s denial of the claim, the
TCCA analyzed the issue as follows:
The petitioner next complains that the State withheld exculpatory evidence when it
failed to produce the medical records pertaining to Ms. Lorraine Young held at
Lakeshore Mental Health Institute in response to trial counsel’s generalized
requests for the medical records of the State’s witnesses. It is well established that
“[s]uppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or punishment,
irrespective of the good faith of the prosecution.” Brady v. Maryland, 373 U.S. 83,
(1963). However, in this case, the petitioner’s claim fails because the prosecution
did not actually suppress Ms. Young’s medical records and the records at issue
would not have been material to the defense.
The petitioner argues that the State suppressed the evidence because the evidence
was contained in a state facility and the State failed to locate and disclose those
records. To rule in the petitioner’s favor on these facts would be tantamount to
ruling that the State must search every state facility for potential records pertaining
to every prosecution witness in every case. We have little difficulty determining
that Brady and its progeny do not impose such a requirement on the State. Brady
generally does not require the State to affirmatively seek out exculpatory evidence.
State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992). While we have
hinted in the past that some leeway may exist in this general rule where the records
sought are already “possessed by or under the control . . . of [a] government
agency,” see id., this caveat is meant to refer to a prosecutor’s affirmative “duty to
learn of any favorable evidence known to the others acting on the government’s
behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 508 (1995)
(emphasis supplied). If the prosecution is ever, in fact, under an affirmative duty
to seek out potentially exculpatory files from a government agency that is entirely
unrelated to law enforcement or the prosecution of the defendant’s case, it is
certainly not under circumstances such as these.
The record reflects that the prosecution had nothing in its files to indicate that Ms.
Young suffered from mental health issues, and nothing indicates that the
prosecution was aware that Ms. Young had ever sought mental health treatment or
that mental health records might exist at any particular state facility. Absent being
specifically requested to examine or produce records from Lakeshore Mental
Health Institute (see State v. Jeffrey R. Allen and Jennings Michael Coen, No.
03C01–9708–CC–00367, 1999 Tenn. Crim. App. LEXIS 17 at ––––10–11, 1999
23
WL 5173 (Tenn. Crim. App. Jan. 8, 1999)) or, at the very least, being placed on
some sort of notice that exculpatory records existed there, the prosecution had no
affirmative duty to seek out such records and is not responsible for the
consequences of any failure to locate them. To rule otherwise would be to impose
on the prosecution a duty to investigate its own witnesses that is simply
breathtaking in its scope and arduousness. In order to secure any conviction, the
prosecution would have to request any and all documents pertaining to every
prosecution witness from every state agency and review all of those records for
potential exculpatory material—or run the risk of having the conviction overturned
if any such records should be discovered at a later time. Such a broad duty to search
would be entirely inconsistent with our previous determination that the State bears
no greater duty to search for exculpatory evidence than a defendant; “[w]hen
exculpatory evidence is equally available to the prosecution and the accused, the
accused ‘must bear the responsibility of [his] failure to seek its discovery.”
Marshall, 845 S.W.2d at 233 (quoting United States v. McKenzie, 768 F.2d 602,
608 (5th Cir. 1985)).
Moreover, the records at issue were not material within the meaning of Brady.
“Evidence is material when there is a reasonable probability that the result of the
proceeding would have been different had the exculpatory evidence been
disclosed.” Sample v. State, 82 S.W.3d 267, 270–71 (Tenn. 2002). In making this
determination, “a reviewing court must determine whether the defendant has shown
that ‘the favorable evidence could reasonably be taken to put the whole case in such
a different light as to undermine the confidence of the verdict.” Johnson v. State,
38 S.W.3d 52, 58 (Tenn. 2001) (quoting Irick v. State, 973 S.W.2d 643, 657 (Tenn.
Crim. App. 1998)).
After thorough review, we conclude that the newly discovered medical records do
not place the petitioner’s case in a substantially different light. Many of the medical
records at issue postdate the trial or concern medical problems that would not have
affected Ms. Young’s credibility as a witness. While some portion of the records
chronicle Ms. Young’s struggle with alcohol use, when she was on the stand, Ms.
Young freely admitted to partaking of alcohol the evening before she witnessed the
crime. The petitioner’s trial counsel extensively cross-examined Ms. Young
concerning the extent of her intoxication and impeached her using prior inconsistent
statements that she made to the police. Medical records reflecting at most the
witness’ prior tendency towards alcohol use would not have rendered this crossexamination appreciably more effective. While the records also contain some
reference to Ms. Young experiencing occasional auditory hallucinations, the
likelihood that a jury would believe that Ms. Young happened to hallucinate an
argument and a crime that were substantially identical in their details as those
attested to by other witnesses is remote in the extreme. Finally, we observe that
even if the medical records had contained material that could have been used to
significantly strengthen the petitioner’s challenge to Ms. Young’s credibility, the
testimony of three other eyewitnesses to the crime would still remain. The
24
discovery of these new medical records simply does not undermine our confidence
in the jury’s verdict.
Hodge, 2011 WL 3793503, at *6–7.
The purpose of Petitioner’s desire to obtain these medical records was to impeach Ms.
Young. In the context of impeachment evidence, “[w]hen the reliability of a given witness may
well be determinative of guilt or innocence, the nondisclosure of evidence affecting credibility
falls within” the Brady rule requiring a new trial. Giglio v. United States, 405 U.S. 150, 154
(1972). Evidence has been deemed material for Brady purposes “if the witness whose credibility
is attacked provides the only evidence linking the defendant to the crime or where the impact of
the evidence on the witness’s credibility would have undermined a critical element of the
prosecution’s case.” Hill v. Mitchell, No. 1:98-cv-452, 2012 WL 995280, at *5 (S.D. Ohio Mar.
23, 2012) (citing United States v. Wong, 78 F.3d 73, 79 (2d Cir. 1996)); see, e.g., Robinson v.
Mills, 592 F.3d 730, 736–37 (6th Cir. 2010) (holding “the suppressed evidence of Sims’ status as
a [confidential informant] is material under Brady because Sims was the State’s star witness and
only her testimony contradicted or undermined Robinson’s assertion that he killed Irwin in selfdefense”).
This Court determines that the TCCA correctly confirmed the post-conviction court’s
finding that the non-disclosure of Ms. Young’s medical records does not constitute a Brady
violation, as her testimony was not “determinative of guilt or innocence” in Petitioner’s case and
was thoroughly cross-examined by Petitioner’s counsel. Hodge, 2011 WL 3793503, at *6. The
record clearly shows that at least three other witness identified Petitioner as the shooter.
Petitioner failed to establish suppression of evidence in his habeas petition. Prosecutors
stated during Petitioner’s hearing on his motion for a new trial that they did not have any records
relating to Young’s mental health treatment (Doc. 12-11). The TCCA noted that nothing in the
25
record indicates that Young suffered from mental health treatment or that mental health records
might exist. Hodge, 2011 WL 3793503 at *6. The records were easily obtainable by Petitioner
himself, as he did for the post-conviction hearing‒and when the designed evidence is equally
available to the prosecution and the accused, “the accused must bear the responsibility of [his]
failure to seek its discovery.” United States v. McKenzie, 768 F.2d 602, 608 (5th Cir. 1985).
Ultimately, Petitioner has not shown that this decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States,” or “an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d). Therefore, Petitioner is not entitled
to habeas relief on the basis of this claim.
VII.
CONCLUSION
For the reasons set forth above, Petitioner’s § 2254 petition (Doc. 1) will be DENIED
and this action will be DISMISSED.
VIII. CERTIFICATE OF APPEALABILITY
The Court must consider whether to issue a certificate of appealability (“COA”) should
Petitioner file a notice of appeal. Under 28 U.S.C. § 2253(a) and (c), a petitioner may appeal a
final order in a habeas proceeding only if he is issued a COA, and a COA may only be issued
where a Petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C.
§ 2253(c)(2). 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
26
petitioner has made a substantial showing of the denial of a constitutional right. See Miller-El v.
Cockrell, 537 U.S. 322, 327 (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. Because the Court’s assessment of Petitioner’s claims could
not be debated by reasonable jurists, such claims are inadequate to deserve further consideration,
and the Court will DENY issuance of a COA. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); MillerEl, 537 U.S. at 327.
An Order Will Enter.
/s/
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE
27
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