Grunder v. Easterling

Filing 15

MEMORANDUM. An appropriate order will enter Signed by District Judge Harry S Mattice, Jr on 9/16/10. (JGK, )

G r u n d e r v. Easterling

D o c . 15

UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF TENNESSEE a t WINCHESTER

C H R IS GRUNDER, P e titio n e r , v.

J O S E P H EASTERLING, Warden, R e s p o n d e n t.

) ) ) ) ) ) ) ) ) )

N o . 4:09-cv-22 M a ttic e

MEMORANDUM

T h is is a petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by p e titio n e r Chris Grunder ("Grunder"). The matter is before the court on the respondent's m o tio n to dismiss. Grunder has not filed a response to the motion to dismiss and the court d e e m s Grunder to have waived his opposition to the dispositive motion. Elmore v. Evans, 4 4 9 F. Supp. 2, 3 (E.D. Tenn. 1976), aff'd mem., 577 F.2d 740 (6th Cir. 1978); E.D.TN. L R 7 .2 . For the following reasons, the motion to dismiss [Court File No. 12] will be G R A N T E D , the petition for the writ of habeas corpus will be DENIED, and this action will b e DISMISSED WITH PREJUDICE.

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I.

S ta n d a rd of Review

A state prisoner is entitled to habeas corpus relief "only on the ground that he is in c u s to d y in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254. Under Rule 8 of the Rules Governing Section 2254 Cases In The United States D is tric t Courts, the court is to determine, after a review of the answer and the records of the c a se , whether an evidentiary hearing is required. If no hearing is required, the district judge is to dispose of the case as justice dictates. If the record shows conclusively that Grunder is n o t entitled to relief under § 2254, there is no need for an evidentiary hearing and the petition s h o u ld be denied. Baker v. United States, 781 F.2d 85, 92 (6th Cir. 1986).

II.

F a c tu a l Background

T h e respondent has provided the court with copies of the relevant documents as to G ru n d e r's direct appeal and post-conviction proceedings. [Court File No. 14, Notice of F ilin g Documents, Addenda 1-18]. Grunder was convicted by a jury, in the Circuit Court of B e d f o rd County, Tennessee, of especially aggravated kidnapping, aggravated rape, a g g ra v a te d assault, and theft of property over $500.00; he was sentenced to an effective s e n te n c e of 31 years. On direct appeal, Grunder challenged the sufficiency of the evidence a s well as his sentence. The Tennessee Court of Criminal Appeals found the evidence was su f f icie n t to support the conviction and thus affirmed the conviction; the appellate court, 2

h o w e v e r, found that the trial court improperly enhanced Grunder's sentence in light of B la k e ly v. Washington, 542 U.S. 296 (2004), and thus reduced Grunder's effective sentence t o 29 years. State v. Grunder, No. M2003-01823-CCA-R3-CD, 2005 WL 49747 (Tenn. C rim . App. Jan. 5, 2005), perm. app. denied, id. (Tenn. May 23, 2005) [Addendum 10]. In a lengthy summary, the Tennessee Court of Criminal Appeals stated the evidence a g a i n s t Grunder as follows: G .H ., the victim, testified that on August 16, 2002, the Defendant and a n o th e r man brutally beat and raped her and stole her car. She said that, on A u g u s t 16, she was at home with her girlfriend, Cynthia Hamm. G.H. said that s h e and Hamm each consumed approximately eight to ten beers, and she was a c cu s to m e d to this amount of alcohol consumption. G.H. said that she and H a m m began to argue, so she took her beer and left the house. G.H. stated that sh e drove her red Pontiac Sunbird on Jackson Street, towards Estill Springs to g o walk through the flea market there to "calm down" before she returned home. G .H . testified that, as she drove down Jackson street, she noticed two w h ite men walking on the side of the road. She noted that she thought she re c o g n iz e d the shorter of the men as her cousin. G.H. stated that the taller of th e two men made a hand gesture, which she believed was a wave. She e x p la in e d that she pulled over to the side of the road, and the two men a p p ro a c h ed the driver's side window. She stated that, as the men approached, s h e realized the shorter man was not, in fact, her cousin. She described the s h o r te r man as "shorter and stockier than the other man." She stated that she " c o u ld n 't see much of his face because "[he had] bushy hair and [a] bush[y] m u s ta c h e , and he had a scruffy face." G .H . testified that the taller of the two men was wearing blue jeans, a b la c k shirt, and a vest. She said that the taller man had numerous tattoos co v erin g his forearms. She described him as having long hair that he wore d o w n and loose, and his hair was lighter in color than the shorter man's hair. G .H . testified that she later learned that the taller of the two men was the D e f en d a n t. She said she got a good look at the Defendant at that point and

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la te r, as she drove the men around, noting that she even remembered that the D e f e n d a n t's jeans were worn and frayed at the ends. G .H . stated that, after the men approached her window, the Defendant to ld her that he had been walking all day, and he asked her if she would give th e two men a ride to a friend's house. G.H. said she agreed to give the two m e n a ride, and they got into her car, the shorter man in the back seat and the D e f en d a n t in the front passenger side seat. She stated that, upon the D e f e n d a n t's direction, she drove the men to an apartment complex. G.H. te stif ie d that, after the Defendant discovered his friend was not home, the D e f en d a n t requested that she drive the men to another friend's house. As she w a s driving, the Defendant asked her to stop at a convenience store, where he w e n t into the store and, upon his return, offered her a beer, which she declined. G .H . said that, as she continued driving the two men to the next location, the D e f en d a n t instructed her to turn off Jackson Street just past a sign for "N o rm a n d y Dam," on Normandy road. She stated that, after turning onto this ro a d , she began to get more uncomfortable and frightened, because the area w a s wooded and remote. G.H. said that she stopped the car and politely e x p la in e d that she could take the men no farther, and she requested that the m e n get out of her car. At this point, G.H. said, the Defendant "snickered" and to ld her that she "was going to take them wherever [the Defendant] wanted, or [ th e Defendant] was going to make [her]." G .H . explained that, suddenly, she was "grabbed from behind." She said th a t the man in the backseat grabbed her hair and pulled her head backwards. S h e said that she felt him press a knife against her, underneath her chest. G.H. s ta te d that the Defendant got out of the car and both men dragged her over the c e n te r console into the passenger side seat. She said that the Defendant was g ra b b in g and pulling her by the arm, and the other man was holding her hair a n d pressing the knife against her. She said that the Defendant went around the c a r and got into the driver's seat, while the man in the backseat held her by the h a ir and kept the knife against her. G.H. testified that the Defendant drove up th e road and turned onto a gravel road, past a truck with a trailer attached, and d ro v e under a train trestle. She said that the Defendant stopped the car and got o u t, and then he grabbed her by the shirt and the arm, and dragged her across th e console out the driver's side door. She said she was kicking and screaming f o r help, even kicking her shoes off in the process. She testified that the D e f en d a n t told the shorter man to "knock out the light" in the car, which he d id . G.H. explained that, after the Defendant dragged her from the car, he b e g a n beating her and hitting her with his fist. 4

G .H . testified that she lost consciousness during the beatings, and was u n s u r e of when or how her clothes were removed. G.H. went on, explaining th a t the shorter man got out of the car, grabbed her by the arms, and pulled her f a ce down across the hood of her car. She said that the Defendant held her h e a d down against the car with one hand, holding her hair against the hood, as h e wrapped the other arm around her waist, placing his hand on her stomach. A t this point, G.H. testified, she was totally naked. She explained that the D e f e n d a n t began raping her from behind, first vaginally, then anally. G.H. said th a t the Defendant next turned her over and held her by the hair and punched h e r in the face with his fist. G.H. recalled that the Defendant yelled at her that " [ s h e ] was fucking getting what [she] fucking deserved." She said that she lost c o n sc io u s n e ss , but when she awoke, the Defendant had her bent backwards o v e r the hood of her car and was raping her again. G.H. said that she began k ic k in g and screaming and fell to the ground. G .H . testified that, after she fell down, the Defendant grabbed her by th e ankle, dragged her across the gravel, and "slung" her into the car. She said th a t she remembered the Defendant being on top of her and slapping her in the f a ce . She said that she lost consciousness again, and, when she awoke, the s h o rte r man was on top of her, raping her from behind, as she lay face down o n the seat of the car with her neck draped over the center console. G.H. te stif ie d that she began kicking and screaming again. She said that the men p u lle d her from the car and she "was just knocked out." G.H. said that, when s h e awoke, her car was gone. G.H. testified that she began crawling towards th e paved road, but was in so much pain that she collapsed and lost c o n sc io u s n e ss again. She said that she awoke briefly and remembered bright lig h ts and people in uniform talking to her and wrapping her in a plastic cover. G .H . stated that she did not remember anything else until she was in the h o s p ita l and a female voice was talking to her. G.H. testified that the physical a n d emotional pain she felt was "the worst feeling [she] had ever had." She s ta te d that after spending the night in the hospital and receiving treatment, she s p o k e with two police officers, one of whom was Detective Chris Brown. G.H. te stif ie d that, after she described her attackers and the events surrounding her a ss a u lt and rape, she was discharged from the hospital, and she left with D e te c tiv e Brown. G.H. explained that Detective Brown, following the d e s c rip tio n she had given to him, drove her to the location of her rape. She s a id that, at the scene, she pointed out her shirt, which Detective Brown re trie v e d . Next, G.H. testified, Detective Brown drove her to a parking lot w h e re her car had been discovered. She said that the back window of the car h a d been broken out, and there were several items inside that did not belong 5

to her. She explained that the Detective bagged these items, specifically s u n g la ss e s, a knife, and a lighter. G.H. stated that she found her keys in the car a n d decided to drive herself home. She explained that she was unable to wear h e r seatbelt because she had bite marks on her breasts that made it too painful. A f te r returning home and taking a bath, G.H. testified, she and Hamm w e n t to the Tobacco Discount Outlet to purchase cigarettes. She explained th a t, when they were turning into the parking lot, Hamm pointed out a man w h o appeared to fit G.H.'s description of one of the men who assaulted her. G .H . stated that she recognized the Defendant and that he was wearing the sa m e clothes as he had worn the night before, when he raped her. G.H. said th a t she parked the car and got out. According to G.H,. the man "turned around a n d gave [her] a look, a shocked look ... and took off quickly ... down the s tre e t." She explained that she called 911 and told them to send the police b e c au s e she had spotted one of the men who raped her. G.H. said that she and H a m m followed the man to the location of a house that he entered. She then b o r r o w e d a friend's telephone and called 911 again. Shortly thereafter, G.H. e x p la in e d , she saw the police leading the Defendant out of that house. G.H. te stif ie d that she heard the Defendant say he did not know her, and then she h e a rd him tell the police officers that they needed to talk to his friend "Lenny." G .H . identified the shorts, t-shirt, and shirt that she was wearing on the d a y of her rape, and she noted that stains and debris that were on the items w e re not present when she left her home the day of the rape. Further, she e x p la in e d that the t-shirt was the same shirt she and Detective Brown found at th e scene of her rape. G.H. also identified a pair of pants, black shirt, vest, and h e a d b an d as the clothing the Defendant was wearing when he raped her and w h e n she saw him the following day. She also identified a bracelet and ring th a t the Defendant was wearing on the day of the rape. She identified the lig h te r and sunglasses that were found in her car, and she said that the D e f e n d a n t was wearing those sunglasses the day he raped her. G.H. also id e n tif ie d a pair of sunglasses that the second man was wearing the day of her ra p e , and testified that these were the sunglasses that the Defendant wore when s h e saw him the following day. G.H. testified that she turned over to Detective B ro w n two hairs that she found in her vehicle. She identified photographs of th e Defendant's tattoos as being the same as those she saw on the arms of the m an who raped her.

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G .H . testified that her car was a 1990 Pontiac Sunbird, and she said that s h e purchased it about one year prior to this incident for "a little over $ 1 ,0 0 0 .0 0 ." O n cross-examination, G.H. testified that she and Hamm occasionally f ig h t when they have been drinking, and sometimes even hit one another. G.H. s ta te d that, before picking up the Defendant and the other man, she drove past th e m and went to the flea market, and, upon discovering it was not open, she h a d turned around and was driving back the way she came when she picked up th e Defendant and his friend. She stated that she did not talk to the men at all d u rin g the car ride, and that she was not in the habit of picking up strangers on th e street. G.H. said that she did not flirt with or make a pass at either man, a n d , although her shorts were short, they were not "that short" on her. G.H. s ta te d that she was not sure if the Defendant bought beer when he stopped at th e store, because she never looked into the sack, but the Defendant took a can w ra p p e d in a small brown bag out of the larger sack. She said that when the D e f en d a n t offered her "something to drink" she declined because she "already h a d a beer." She explained that, at that point, no one had made a pass at her or h a d threatened her. G.H. stated that the Defendant grabbed her first. She said s h e did not remember with which hand the other man was holding the knife, o n ly that she felt "something sharp" held against her. G.H. stated that the man in the backseat did not hold the knife on her until she had been pulled into the p ass e n g er side seat. G.H. stated that both men pulled her clothes off of her. S h e repeatedly explained that she did not remember the specific number of tim e s she was hit or beaten, because she was frightened and was only c o n c ern e d with escaping. Holly Crabtree testified that she, her two children, and her fiancé were re tu rn in g from Normandy Lake when they saw a woman lying in the middle o f the road. She identified this woman as the victim, G.H. Crabtree stated that th e r e was another woman there, trying to approach G.H., but G.H. was s c re a m in g "get away from me." Crabtree said that she knew the person who liv e d in the trailer nearby, so she went there to call 911 while her fiancé stayed a t the road to stop traffic. At this point, Crabtree explained, G.H. was wearing o n ly a blue t-shirt. She described G.H. as "hysterical." She stated that G.H. had b l o o d "[c]aked in her ears" and her hair, and she had blood between her thighs, o n her face, and on her shirt. She explained that she tried to calm G.H. down w h ile they waited for the police. She recalled that G.H. would not let any man a p p r o a c h her, not even the police or paramedics, and, in fact, a female nurse h a d to be called in to get G.H. into the ambulance. Crabtree testified that when 7

s h e asked G.H. what happened, G.H. exclaimed that she was raped and "they d id it; they threw me out of the car." D e p u ty Nikia Elliot, of the Bedford County Sheriff's Department, te stif ie d that, on the evening of August 16, 2002, he responded to a dispatch c a ll about a woman found in the middle of Normandy road. He stated that he a rr iv e d about ten minutes later to discover a woman, whom he later learned w a s G.H., standing in the middle of the road with two other females. Deputy E llio t recalled that G.H. was wearing only a t-shirt and that her face was sw o llen and beginning to bruise. He characterized G.H. as confused. He said th a t G.H. would scream for men to get away from her when they tried to a p p ro a c h her. Elliot stated that he heard G.H. repeatedly say "they did this to m e ." The Deputy said that he retrieved a raincoat from his car and gave it to o n e of the women, who wrapped the coat around G.H. He testified that he f o u n d a pair of white denim shorts on the side of the road, approximately thirty to fifty feet from the turn-off where G.H. said she was raped. He said he placed th e shorts in a bag and later turned them over to Detective Brown. Deputy E llio t explained that, while following the ambulance to the hospital that night, h e called Detective Brown, and Detective Brown met him at the hospital. E llio t stated that the road where G.H. was raped runs directly behind the g ro c e ry store where G.H.'s car was found. On cross-examination, Elliot te s tif ie d that he did not remember whether G.H. had blood on her legs or arms, b u t he did remember that her face appeared beaten and swollen. D r. Lynette Adams testified that she is a family practice physician. Dr. A d a m s explained that, on August 16, 2002, a colleague called from the e m e r g e n c y room and asked her to come assess G.H., because G.H. was " co n f u se d and very hostile toward any male contact." Dr. Adams said that she c o n d u c te d an examination of G.H. and documented her findings, and that she p re p a re d G.H.'s "rape kit." Dr. Adams testified that, when she arrived, G.H. w a s "very scared and didn't want anyone to touch her." Dr. Adams said that G .H . stated that she had been sexually assaulted, vaginally, anally, and orally. D r. Adams recalled that G.H. had numerous bruises and scratches, a la c era tio n on her head, and bite marks on her breasts. She testified that, during G .H .'s pelvic examination, she found "bits of gravel and debris," both on the in s id e and the outside of G.H.'s body, and "a great deal of trauma to the v a g in a l area." Further, Dr. Adams said that she found "trauma to the external g en italia. " Dr. Adams recalled that G.H.'s anal area was "reddened." Dr. A d a m s said that she ordered an urinalysis, which indicated the presence of 8

b lo o d in G.H.'s urine. Dr. Adams testified that blood in the urine commonly o c c u rs with physical trauma, and can be caused by, for example, a severe blow to the lower back, which would cause blood to enter the kidneys. Dr. Adams id e n tif ie d numerous photographs that she took of G.H. at the hospital, and she n o ted the various injuries to G.H.'s face, head, back, arms, and legs. Dr. A d a m s pointed out the many lacerations and abrasions, swelling and bruising, a n d bite marks depicted in those photographs. She explained that G.H. was tre a te d for pregnancy and sexually transmitted diseases as a precaution, given m e d ic a tio n for her pain, and that her cuts were sutured. Dr. Adams stated that s h e did not find the presence of semen on the external areas of G.H.'s body. O n cross-examination, Dr. Adams testified that excessive alcohol use c a n cause blood in urine, but she believed the most likely cause in G.H.'s case w a s trauma. She said, however, that G.H. did smell like alcohol, and her urine d id indicate she had been drinking. Further, Dr. Adams stated that she did not re m e m b e r blood on G.H.'s arms, legs, or hands, but that the blood was "caked" o n her face, and in her hair. Dr. Adams said that cuts like those on G.H.'s face w o u ld bleed quite freely. M ic h a el Tuberville, a DNA analyst in the Tennessee Bureau of In v e stig a tio n 's ("TBI") serology crime lab, and an expert in the area of s e ro lo g y and DNA testing, testified that he tested the evidence received by the T B I in this case, including the rape-kit swabs from G.H.'s vaginal, oral, and a n a l areas. Agent Tuberville explained that, while he found some male DNA in the victim's swab kit, he did not find enough to compile a DNA profile. On c ro s s -e x a m in a tio n , the agent testified that he did not find the presence of any s e m e n on the swab from the anal area. Agent Tuberville stated that he c o n d u c te d tests of the other evidence submitted to the crime lab, and found no b lo o d on any of the Defendant's clothing or jewelry FN5 and no semen on G .H .'s clothes.FN6 On re-direct the agent stated that this did not mean that b lo o d and semen were not ever on these items, and on re-cross, he stated that this did not mean that blood and semen were ever on these items either. H e a th e r Erec, a forensic DNA analyst at Orchid Cellmark, testified that s e v e ra l hairs found in this case were submitted to Orchid Cellmark for DNA p ro f ilin g . Erek testified that the hairs submitted all contained a root or partial ro o t, but she was unable to extract DNA from these hair roots. Erek said that s h e also conducted a test on the vaginal swab from G.H.'s rape kit but was u n a b le to identify a male profile.

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S tev e Jackson testified that he was the co-manager of the grocery store w h e re the victim's car was found. He said that, at about nine or ten on the night o f August 16, 2002, he noticed a "reddish color" car sitting in the parking lot. H e explained that, when he arrived at work the next day, the car was still in the lo t, so he contacted the Police Department. Jackson recalled that, when the p o lic e arrived, he approached the car and noticed that it had out of state tags a n d broken windows. Further, Jackson said that he noticed some articles of cloth in g and tennis shoes in the car. C yn th ia Hamm testified that she was living with G.H. in August of 2 0 0 2 . Hamm said that, on August 16, 2002, she and G.H. had a verbal a rg u m e n t, and G.H. left and drove away. Hamm stated that she did not see or h e a r from G.H. until the police arrived and notified her that G.H. was in the h o s p ita l in Shelbyville. She said that she took a cab to the hospital and stayed th e re until G.H. was released on August 17, 2002. She explained that, after G .H . was discharged, she and G.H. left the hospital with Detective Brown. H a m m stated that she rode with G.H. and Detective Brown to the scene of G .H .'s rape and to the grocery store to retrieve G.H.'s car. After the women re tu rn e d home, Hamm stated, they left to go purchase cigarettes and to visit a f ri e n d . Hamm recalled that she noticed a man walking down the street who a p p e a r e d to fit G.H.'s description of her rapist. Hamm identified this man as th e Defendant. Hamm testified that she asked G.H. if that was the man and G .H . said "yes." Hamm said that G.H. then pulled the car "right up on him. He w a s right in front of the car." Hamm said that the Defendant turned and faced th e car and had a "surprised look on his face." Hamm said that the Defendant th e n "took off down the street ... running." Hamm explained that she followed th e Defendant and "scream[ed] profanity" at him. Hamm said that the D e f en d a n t cut through some grass and went into a house. Hamm explained th a t, although she did not actually see the Defendant enter the house, she "kind o f suspected" he had gone into the house, and a "little boy told [her], yeah, he d id go in there." Hamm said she remained outside the house and G.H. drove u p . Hamm said that she went to a nearby friend's house to retrieve a phone, and G .H . used this phone to contact 911 again. Hamm testified that the Defendant t r ie d to sneak out of the side-window of the house. Hamm stated that she ye lle d to him, and he then came out the front door. Hamm said that he began talk in g to G.H. She recalled that, "[a]t first he acted like he didn't know her, a n d then he said that it was his buddy, Lenny, that she wanted ... that she had h im confused with somebody else ... that he had never been in her car ... then h e admitted to being in the car, but she had dropped him off." Hamm said that

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th e police arrived and arrested the Defendant. Hamm testified that, prior to that d a y, she had never before seen the Defendant. O n cross-examination, Hamm testified that she and G.H. drank about s ix beers each, between approximately 11:00 a.m. and 5:00 p.m. on August 16, 2 0 0 2 , but she said she could not be sure about the amount because she was not k e e p in g track. Hamm said G.H. left after they began to argue. Hamm stated th a t she and G.H. drank "a couple of days a week" at that time. Hamm a d m i tte d that, in the past, their arguments had become physically violent, but s h e denied that there was any physical contact on the day in question. Hamm te stif ie d that G.H. was full of "rage" after the rape, and could not stand to be in the city where her rape occurred, "always looking over her shoulder." Hamm s a id that, when the police arrived at her house the night G.H. was raped, she w a s across the street at a neighbor's house. She estimated that it might have b e e n between 8:00 p.m. and 10:00 p.m. Hamm said she remembered it was " p re tty late" because she had a difficult time getting a ride to the hospital. She te s tif ie d that, on August 17, the police were present when the Defendant came o u t of the house that he entered after she chased him and he was yelling that h e did not know G.H. D etec tiv e Chris Brown testified that he is a detective with the Bedford C o u n ty Sheriff's Department. He said that, on August 16, 2002, he was called to the Bedford County Medical Hospital by Deputy Elliot. He explained that h e met the deputy at the hospital, and the deputy gave him a pair of white sh o r t s that the detective placed into an evidence bag and put in his car. D e te c tiv e Brown said that when he first saw G.H. at the hospital she was on a stretcher in an exam room, and she appeared "severely assaulted." He e x p lain e d that G.H. did not want any males near her, and, when she heard his v o ic e through a curtain, she became very upset, so he left the room. Detective B ro w n testified that, at his request, Dr. Adams performed a rape-kit on G.H. a n d took pictures of G.H. He said that Dr. Adams collected and gave him G .H .'s t-shirt and the hospital sheets from under G.H.. D e te c tiv e Brown testified that he called in a "be on the lookout for" on G .H .'s car. According to Detective Brown, on August 17, he went to the h o s p ita l and picked up G.H. and Hamm. Detective Brown said that G.H. d e sc rib e d where she was raped, and he drove to the sign that she remembered. D e te c tiv e Brown said that G.H. was able to identify the sign and the turn-off, a s well as the area where she stopped and asked the men to exit her car. He s a id that, as he continued driving, G.H. pointed out the trailer that she 11

re m e m b e re d and the turn-off to the road where she was raped. He stated that th e y drove under the train trestle at this turn-off, and G.H. identified that spot a s the location of her rape. He explained that he got out of the car to look a ro u n d and noted that the area was not visible from the main road. Detective B ro w n said that he found an inside-out t-shirt at the scene. D e te c tiv e Brown said that, as they were leaving the scene, he received a call that the police may have found G.H.'s car. He said that he and the two w o m e n drove down the road and turned directly into the grocery parking lot. D e te c tiv e Brown said that, when they arrived, there was an officer at G.H.'s c a r, which was parked on the right side of the lot. He said that the back w in d s h ie ld and the interior dome light of the car were broken. He stated that h e checked the interior before G.H. approached the car, and that he found "a p a i r of sunglasses, a cigarette lighter, and a lock-blade style knife that has a c l ip on it," all of which were items that G.H. said did not belong to her. D e tec tiv e Brown said that G.H. later gave to him two hairs that she found in h er car. D e te c tiv e Brown stated that, later that day, he received a call about G .H .'s 911 call. He told the police to "pick up the subject" and meet him so th a t he could take custody of the Defendant. Detective Brown said that another o f f ic e r in his department went to pick up the Defendant, and Detective Brown m e t them at the Bedford County Sheriff's Office. The detective identified the m a n at the Sheriff's office as the Defendant. Detective Brown testified that he r e a d the Defendant his rights and explained these rights to him, and the D e f en d a n t waived his rights. Detective Brown said that, during his interview w ith the Defendant, the Defendant denied fleeing from G.H. and Hamm that d a y. He said that the Defendant admitted that he accepted a ride from G.H. on A u g u s t 16, but claimed that, after stopping for beer, he did not return to the c a r. The Detective stated that the Defendant said that G.H. and his friend " L e n n y" left the store together. The Detective said that the Defendant stated th a t he purchased beer at the FM Market, but that G.H. said the stop was at an Exxon. D e te c tiv e Brown testified that the Defendant said he was wearing the s a m e vest, t-shirt and jeans that he had worn on August 16. Detective Brown s a id that he took these clothes as well as a bandana, a silver ring, a pair of s u n g la ss e s, and a leather bracelet. Detective Brown stated that the Defendant c la im e d he had gone to a night club on the evening of August 16 at around 9 :0 0 p.m. He said that, during the interview, he had the opportunity to examine 12

th e Defendant's person, and that the Defendant had scratch marks across his c h e st, which the Defendant said he had made with his own nails. The detective s a id that he supervised the photographing of the Defendant's tattooed arms, a n d identified these photographs as the photographs entered into evidence. D e te c tiv e Brown testified that, after the interview with the Defendant, he o b ta in e d the surveillance video from the FM Market for August 16, and the D e f e n d a n t did not appear in the video. He said that he obtained an arrest w a rra n t for Lenny Stewart, the man that the Defendant claimed to be the c u lp a b le party, and he checked Stewart's last known address, but he no longer liv e d there. Detective Brown said that he entered Stewart into the National C rim e Information Center, but, as far as the detective knew, this man had not ye t been located. O n cross-examination, Detective Brown stated that he did not find a bra o r panties at the scene of G.H.'s rape or in her car. He said that, when he in ter v iew e d the Defendant, the Defendant gave him a signed written statement. D e tec tiv e Brown read the Defendant's statement: I and Lenny walked to Shamrocks bar on Friday a f te rn o o n , played a couple of games of pool and had a beer. We w e re walking back to Tullahoma when a girl pulled off by the a c ad e m y and Clayton Homes and asked if we needed a ride. She o f f e re d us a beer and drove us around for a few minutes and d ro p p e d me off at the FM Market. From there, I went home, got re a d y to go to the club, spent the rest of the night at the club. L e n n y left with her after I got out at the FM Market. It was early e v e n in g . O n re-direct examination, Detective Brown said that the Defendant g e n e ra te d his statement at the end of their long interview. Id ., 2005 WL 49647 at **1-10 (footnotes omitted). G ru n d e r then filed a petition for post-conviction relief, in which he alleged he was d e n ie d the effective assistance of counsel at trial. The petition was denied after an

e v id e n tiary hearing and the Tennessee Court of Criminal Appeals affirmed the denial of postc o n v ic tio n relief. Grunder v. State, No. M2006-01503-CCA-R3-PC, 2007 WL 2011162 13

(T e n n . Crim. App. July 11, 2007), [A d d en d u m 18].

perm. app. denied, id. (Tenn. March 24, 2008)

In support of his petition for the writ of habeas corpus, Grunder raises the following g ro u n d s for relief: 1. T h e evidence set forth by the state in the petitioner's case was not sufficient to u p h o ld the findings of the jury. The petitioner was denied his constitutional a m e n d m e n t right to due process under the Fifth and Fourteenth Amendments (U .S .C .A . 5, 14). T ria l counsel was ineffective by failing to adequately cross-examine the victim d u rin g trial, a violation of the petitioner's Sixth Amendment constitutional rig h t to effective assistance of counsel and a violation of petitioner's Fifth and F o u r te e n th constitutional amendment right to due process of law (U.S.C.A. 5, 6 , 14). T ria l counsel was ineffective by failing to properly investigate the petitioner's c a se , a violation of the petitioner's Sixth Amendment constitutional right to e f f e c t iv e assistance of counsel, and a violation of petitioner's Fifth and F o u rtee n th Amendment rights to due process of law (U.S.C.A. 5, 6 14). T h e appellate court erred when it erroneously upheld the trial court's re se n ten c in g after direct appeal. The petitioner is entitled to the full panoply o f Blakely v. Washington, 542 U.S. 296 (2004). A p p ly Oregon v. Ice, 2007 WL 2949148 (Or.) on review to the Unites States S u p re m e Court, 2008 WL 112170 (U.S. Or.) to the petitioner's consecutive s e n te n c es if Ice prevails in the United States Supreme Court.

2.

3.

4.

5.

T h e respondent contends he is entitled to judgment as a matter of law as to each claim b a s e d upon the findings of the Tennessee state courts.

14

III.

S ta te Court Findings

P u r s u a n t to 28 U.S.C. § 2254(d), Grunder may not obtain federal habeas corpus relief w ith respect to a claim that was adjudicated on the merits in a state court proceeding unless th e state court decision (1) was contrary to, or involved an unreasonable application of, c le a rly established federal law or (2) was not reasonably supported by the evidence presented to the state court. In addition, findings of fact by a state court are presumed correct and G ru n d e r must rebut the presumption of correctness by clear and convincing evidence. 28 U .S .C . § 2254(e). T h e Supreme Court, in Williams v. Taylor, 529 U.S. 362 (2000), clarified the d ist in c ti o n between a decision "contrary to," and an "unreasonable application of," clearly e sta b lis h e d Supreme Court law under § 2254(d)(1). A state court decision is "contrary to" S u p r e m e Court precedent "if the state court arrives at a conclusion opposite to that reached b y [the Supreme Court] on a question of law or if the state court decides a case differently th a n [the Supreme Court] has on a set of materially indistinguishable facts." Id. at 413. A s ta te court decision "involves an unreasonable application of clearly established Federal law" o n ly where "the state court's application of clearly established federal law was objectively u n r e a so n a b l e ." Id. at 409. A federal habeas court may not find a state adjudication to be " u n re a so n a b le " "simply because that court concludes in its independent judgment that the re le v a n t state-court decision applied clearly established federal law erroneously or in c o r re c tly. Rather, that application must also be unreasonable." Id. at 411. 15

IV .

D is c u ss io n

A . Sufficiency of the Evidence

G ru n d e r alleges the evidence was insufficient as a matter of law to support his c o n v ic tio n s . Grunder specifically claims that the testimony was full of contradictions b e tw e e n pre-trial statement, testimony at trial, and the actual whereabouts of petitioner at the tim e of the crimes. Petitioner insists he had an alibi, to-wit, that he was at the convenience store where the victim and co-defendant left him. Petitioner contends that no positive hard e v id e n c e linked him to the crimes against the victim and that the only evidence against him w a s the eyewitness testimony of the intoxicated victim, which he submits was unreliable. In a federal habeas corpus proceeding in which a state prisoner challenges the s u f f ic ie n c y of the evidence supporting his conviction, the petitioner "is entitled to a d e te rm in a tio n whether the record evidence could support a finding of guilt beyond a r e a so n a b l e doubt." Moore v. Duckworth, 443 U.S. 713, 714 (1979). However, Grunder is e n title d to habeas relief only "if it is found that upon the record evidence adduced at the trial n o rational trier of fact could have found proof beyond a reasonable doubt." Jackson v. V irg in ia , 443 U.S. 307, 324 (1979). See Brofford v. Marshall, 751 F.2d 845, 856 (6th Cir. 1 9 8 5 ). W h e n reviewing a jury's verdict under a sufficiency of the evidence standard, a court m u s t consider all the evidence in a light most favorable to the prosecution. Jackson v. 16

V irg in ia , 443 U.S. at 319. Witness credibility is an issue to be left solely within the province o f the jury, Deel v. Jago, 967 F.2d 1079, 1086 (6th Cir. 1992); United States v. Schultz, 855 F .2 d 1217, 1221 (6th Cir. 1988), and substantial deference should be given to the trier of fact. U n ited States v. Ayotte, 741 F.2d 865, 867 (6th Cir. 1984). "[T]he federal court sitting in h a b e as should not attempt to substitute its own opinion for that of the jury which convicted th e petitioner." York v. Tate, 858 F.2d 322, 329 (6th Cir. 1988). A conviction should be a f f irm e d if any rational trier of fact could have found the defendant guilty beyond a re a s o n a b le doubt. United States v. Bourjaily, 781 F.2d 539, 544 (6th Cir. 1986), aff'd, 483 U .S . 171 (1987). The Tennessee Court of Criminal Appeals on direct appeal considered Grunder's c la im of insufficient evidence. The appellate court first articulated the standard under J a c ks o n for challenging the sufficiency of the evidence to support a conviction: W h e n an accused challenges the sufficiency of the evidence, an a p p e lla te court's standard of review is whether, after considering the evidence in the light most favorable to the prosecution, any rational trier of fact could h a v e found the essential elements of the crime beyond a reasonable doubt. T h is rule applies to findings of guilt based upon direct evidence, circumstantial e v id e n c e, or a combination of both direct and circumstantial evidence. S t a t e v. Grunder, 2005 WL 49647 at *13 (citing Jackson v. Virginia, 443 U.S. 307, 324 (1 9 7 9 )) (other internal citations omitted). The court also observed the following: In determining the sufficiency of the evidence, this Court should not re -w e ig h or re-evaluate the evidence. This Court may not substitute its in f e re n c es for those drawn by the trier of fact from the evidence. Questions c o n c ern in g the credibility of the witnesses, the weight and value of the e v id e n c e, as well as all factual issues raised by the evidence are resolved by 17

th e trier of fact. This Court must afford the State of Tennessee the strongest leg itim a te view of the evidence contained in the record, as well as all re a s o n a b le inferences which may be drawn from the evidence. Because a v e rd ic t of guilt against a defendant removes the presumption of innocence and r a is e s a presumption of guilt, the convicted criminal defendant bears the b u rd e n of showing that the evidence was legally insufficient to sustain a guilty v e rd ict. Id . at *14 (internal citations omitted). T h e appellate court then considered each of Grunder's convictions in turn. With re sp e c t to his conviction for especially aggravated kidnapping, the court first noted that the th e definition of that crime, under Tennessee law, is "'knowingly remov[ing] or confin[ing] a n o th e r unlawfully so as to interfere substantially with the other's liberty ... where the victim s u f f e r s serious bodily injury.'" Id. at *14 (quoting Tenn. Code. Ann. §§ 39-13-302, -305 (2 0 0 3 )). The court then concluded that the evidence was sufficient to support the conviction. T h e evidence showed that G.H. requested that the Defendant and the other m a n , Stewart, get out of her car. After G.H. made this request, the Defendant a n d Stewart forcibly confined G.H., transported her to a secluded area, and she s u f f ere d serious bodily injury as a result. The Defendant admitted to the police th a t he accepted a ride from G.H., but said that she and Stewart left him at a c o n v e n ie n c e store. The jury accredited G.H.'s testimony that the Defendant w a s present, and we will not second-guess the jury on credibility issues. T h e re f o re , we conclude there is sufficient evidence to sustain the Defendant's c o n v ic tio n for especially aggravated kidnapping. Id. A s to the conviction for aggravated rape, the appellant court noted that aggravated ra p e is defined as "the unlawful sexual penetration of a victim by the defendant or the d e f en d a n t by a victim ... [and] the defendant is aided or abetted by one or more persons; and

18

f o r c e or coercion is used to accomplish the act." Id. (quoting Tenn. Code Ann. § 39-13-502 (2 0 0 3 )). The court concluded the evidence was sufficient to support the conviction. "The e v id e n c e at trial showed that the Defendant penetrated G.H. both vaginally and anally. G.H. s a id that this was done forcibly and against her will. The Defendant was aided in this crime b y another man, Stewart. We conclude this evidence is sufficient sustain the Defendant's c o n v i c tio n for aggravated rape." Id. W ith respect to Grunder's conviction for aggravated assault, the Tennessee Court of C r im in a l Appeals first noted as follows: A g g ra v a te d assault is 'intentionally ... knowingly ... or recklessly commit[ting] a n assault' and either 'caus[ing] serious bodily injury' or 'us[ing] a deadly w e a p o n .' Assault is defined as occurring when a person: (1 ) Intentionally, knowingly or recklessly causes bodily injury to another; (2 ) Intentionally or knowingly causes another to reasonably fear im m in e n t bodily injury; or (3 ) Intentionally or knowingly causes physical contact with a n o th e r and a reasonable person would regard the contact as e x tre m e ly offensive or provocative. Id . at *15 (quoting Tenn. Code Ann. §§ 39-13-101, -102 (2003)). T h e court then concluded that the evidence was sufficient to support the conviction. T h e evidence at trial showed that the Defendant brutally beat G.H., c a u s in g G.H. to lose consciousness repeatedly. As a result of the Defendant's b e a tin g s, G.H. suffered multiple bruises and abrasions. G.H.'s face was cut in tw o places, and both cuts required stitches. The Defendant bit G.H.'s breast, le a v in g behind swollen painful bite marks. The Defendant denies that he was p re s e n t when these events took place. The jury obviously credited the victim's 19

te stim o n y, and, therefore, the Defendant was found guilty of aggravated a ss a u lt. Therefore, we conclude this evidence is sufficient to sustain the D e f e n d a n t's conviction for aggravated assault. Id. F in a lly, as to Grunder's conviction for theft of property over $500.00, the appellate c o u rt noted that, under Tennessee law, "[a] person commits theft of property if, with intent to deprive the owner of property, the person knowingly obtains or exercises control over the p r o p e r ty without the owner's effective consent." Id. (quoting Tenn. Code Ann. § 39-14-103 (2 0 0 3 )). The court concluded that the evidence was sufficient to support the conviction. T h e evidence at trial showed that the Defendant beat and raped G.H until she lo s t consciousness. When G.H. awoke, the Defendant, Stewart, and G.H.'s car w e re gone. The police located G.H.'s car in a grocery store parking lot, directly o f f the road where G.H. was raped. Inside G.H.'s car, the police discovered the D e f en d a n t's sunglasses and the knife used during the kidnapping and rape of G .H . G.H. testified that she purchased the car, a 1990 Pontiac Sunbird, about o n e year prior to its theft, for "a little over $1000.00." We conclude that this e v id e n c e is sufficient to sustain the Defendant's conviction for theft of property o v e r $500.00. Id. T h is court has reviewed the transcript of Grunder's trial [Addendum 2-4, vol. I-III, T ran script of Case in Chief at Trial, pp. 1-348] and finds the decision by the Tennessee Court o f Criminal Appeals is supported in the record. The proof that the victim was brutally a ss a u lte d , both physically and sexually, was uncontradicted. Grunder, who was arrested the n e x t day, met the description of the victim's attacker as given by her to the police and was w e a rin g the clothing and other articles described by the victim. Grunder admitted being in

20

th e victim's car but denied assaulting her; Grunder admitted that he was wearing the same c lo th in g on the day of the arrest as he was wearing the previous day. The victim testified as to all elements of the offenses against Grunder and she identified Grunder in open court as o n e of the men who attacked her. Grunder contends that the victim was not a reliable w itn e ss , but her credibility and reliability were issues for the jury to determine. T h e decision of the Tennessee Court of Appeals that the evidence was sufficient to s u p p o r t Grunder's convictions was neither contrary to, nor did it involve an unreasonable a p p lic a tio n of, federal law as established in Jackson v. Virginia. Grunder is not entitled to h a b e a s relief on this claim.

B . Ineffective Assistance of Counsel

In Strickland v. Washington, 466 U.S. 668 (1984) the United States Supreme Court e sta b lish e d a two-part standard for evaluating claims of ineffective assistance of counsel: First, the defendant must show that counsel's performance was deficient. This re q u i re s showing that counsel made errors so serious that counsel was not f u n c tio n in g as the "counsel" guaranteed the defendant by the Sixth A m e n d m e n t. Second, the defendant must show that the deficient performance p r e ju d ic e d the defense. This requires showing that counsel's errors were so s e rio u s as to deprive the defendant of a fair trial, a trial whose result is reliable. Id . at 687. To establish that his attorney was not performing "within the range of competence d e m a n d e d of attorneys in criminal cases," McMann v. Richardson, 397 U.S. 759, 771 (1970),

21

G runder must demonstrate that the attorney's representation "fell below an objective standard o f reasonableness." Strickland v. Washington, 466 U.S. at 687-88. In judging an attorney's c o n d u c t, a court should consider all the circumstances and facts of the particular case. Id. a t 690. Additionally, "a court must indulge a strong presumption that counsel's conduct falls w ith i n the wide range of reasonable professional assistance; that is, the defendant must o v e rc o m e the presumption that, under the circumstances, the challenged action 'might be c o n s id e r e d sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1 9 5 5 )). A finding of serious attorney incompetence will not justify setting aside a

c o n v ic tio n , however, absent prejudice to the defendant so as to render the conviction u n re lia b le . Id. at 691-92. G ru n d e r alleges two instances of ineffective assistance of counsel. He first alleges th a t counsel failed to adequately cross-examine the victim during trial as to inconsistencies b e tw e e n her trial testimony and out-of-court statements. He next alleges that counsel failed to properly investigate the case, by failing to meet with Grunder early in the case to develop d e f e n s e strategies and to talk to potential witnesses. T h e se were among the same claims of ineffective assistance of counsel considered and r e je c te d by the Tennessee Court of Criminal Appeals in post-conviction proceedings: O n appeal, the Petitioner claims that the trial court erred in denying the p e titio n for post-conviction relief. He asserts a number of bases for his claim o f ineffective assistance of counsel. First, Counsel was ineffective in not c ro s s -e x a m in in g the victim about what time she left her house, who held the k n ife, whether she saw the Petitioner in a crowd or walking by her car, w h e th e r or not the Petitioner tried to jump out of a window, what her blood 22

a lc o h o l level was, her mental history, and whether she stated one of the a ss a ila n ts looked like a relative of hers. Second, Counsel did not properly in v e stig a te the case in that he failed to interview key witnesses while their m e m o r ie s were fresh enough to remember the Petitioner's whereabouts on the n ig h t in question. G ru n d e r v. State, 2007 WL 2011162 at *5. T h e appellate court first summarized the evidence at the post-conviction hearing, as w e ll as the trial court's findings in denying post-conviction relief: A t the hearing on the post-conviction petition, the Petitioner testified th a t his counsel at his preliminary hearing was Michael Collins of the Public D e f en d e r's Office. After the preliminary hearing, Jack Dearing, also of the P u b lic Defender's Office, took over his case. The date of the offense was A u g u s t 16, 2002, and he was arrested the next day. At the preliminary hearing in November 2002, the victim testified, and, although there is no tape or tra n sc rip t of the preliminary hearing, the Petitioner took notes. The Petitioner s ta te d that he observed a number of discrepancies between the victim's tes tim o n y at the preliminary hearing and at trial. F irst, at the preliminary hearing, the Petitioner claimed the victim te stif ie d she left her house at 7:00 p.m., while, at trial, she testified it was at 5 :0 0 p.m. Second, at the preliminary hearing, the Petitioner claimed that the v ictim testified the Defendant held a knife to her, while, at trial, she said he did n o t have a knife. Third, at the preliminary hearing, he alleged the victim tes tifie d that she picked the Petitioner out of a crowd at the Tobacco Outlet, w h ile , at trial, she stated he was walking across a parking lot in front of her c a r . Fourth, at the preliminary hearing, the victim did not testify about the P e titio n e r jumping out of a window, while, at trial, she did. Fifth, at the p r e lim in a r y hearing, the court asked the victim if her friend was present as a w itn e ss , and the victim responded she was just there as a friend. This person te stif ie d at trial. Sixth, at the preliminary hearing, the victim did not mention th a t one of the assailants looked like a relative of hers, while, at trial, she did. A f te r the preliminary hearing, the Petitioner stayed in jail, and Jack D e a rin g ("Counsel"), became his attorney. The Petitioner stated that Counsel c a m e to see the Petitioner about six times, most of the time not bringing his f ile . The Petitioner had questions and requests, to which he claimed counsel 23

n e v e r responded. The Petitioner asked Counsel to obtain a transcript of the p re lim in a ry hearing because he knew the victim was lying, and the Petitioner a sk e d Counsel to visit potential witnesses. The Petitioner stated none of his re q u e sts were completed, and it was six to eight months before the witnesses w e r e interviewed. The Petitioner claimed these witnesses would provide an a lib i in that they could testify he was at a bar at 5:00 p.m. T h e Petitioner further testified he was able to look at the victim's m e d ic a l records, and he noticed further discrepancies between statements she g a v e to doctors and her testimony at trial. In the medical report, the victim s ta te d she bit the Petitioner on the penis while he was attempting to have oral sex with her, but she never testified to that at trial. Further, the medical report in d ic a te d that the victim's blood alcohol level was a .23, but Counsel did not q u es tio n the victim on the issue. There was also evidence in the medical report th a t the victim was depressive and suicidal, but Counsel never questioned the v ictim on that issue either. T h e Petitioner also testified that the victim changed the time of the a tta c k from 7:00 p.m. to 5:00 p.m., and this was important because the P e titio n e r claimed he was at "BJ and Pauline's" at 7:00 p.m. He stated that he a sk e d Counsel to find BJ and Pauline, but this was not done. Additionally, the P etitio n er testified that he asked Counsel to locate Terry Luther and Robert L u th e r, because the Petitioner claimed the Luthers would be able to testify that th e Petitioner was not trying to escape out of the window of their house the day h e was arrested. The Petitioner admitted that, although Counsel apparently f o u n d the Luthers, they were unable to offer anything helpful. T h e Petitioner also claimed that there were no fingerprints or DNA e v id e n c e linking him to the crime, and he believed Counsel should have asked m o re questions about those issues. Also, the Petitioner believed that Counsel d id not keep him adequately informed of the progress of his case. The P e titio n e r testified that, for example, during the breaks at trial, he never spoke w ith Counsel. The Petitioner also complained that Counsel failed to raise issue w ith inconsistencies in DNA testing, and that although there were alleged s c ra tc h marks on the Petitioner, no pictures were ever taken of the scratch m a rk s or lack thereof. Further, the Petitioner complained that Counsel should h a v e been present when pictures were taken of his tattoos. The Petitioner also c la im e d Counsel should have gone to Favorite Market to look at videotape, w h ic h would have supported his claim that he got out of the victim's car and w a lk e d home at around 5:00 p.m. The Petitioner also stated neither he nor the 24

P u b lic Defender's Office ever received one of the two statements made by the v ic tim . O n cross-examination, the Petitioner admitted that Counsel brought s o m e things to him in jail, and he and Counsel discussed the facts of the case. T h e Petitioner testified that Counsel stated he would attempt to obtain the tape o f the preliminary hearing, but, to his knowledge, it was never accomplished. T h e Petitioner acknowledged that the Public Defender's Office did go to T u lla h o m a and talked to Terry Luther. The Petitioner admitted his mistake as to the name, and he stated that Counsel did speak with Luther, but Luther's v e rs io n of the events did not help the Petitioner. The Petitioner stated he was n o t aware that Luther's recollection coincided with that of the victim. H o w e v e r, the Petitioner stated that Counsel never explained the efforts made to find BJ and Pauline. T h e Petitioner acknowledged that Counsel met with two other potential a lib i witnesses, both of whom provided no help, and that Counsel questioned w i t n e ss e s about DNA evidence. The Petitioner admitted he was told that C o u n s e l went to Favorite Market to ask for the tapes, but he was not aware of th is until the sentencing hearing. The Petitioner also could not explain what he b e lie v e d would have been different had Counsel been present when pictures o f his tattoos were taken by the police. C o u n s e l testified that he worked on the Defendant's case with two in v e stig a to rs . Counsel directed these two investigators on January 21, 2003, to visit the Petitioner, get the names of any witnesses from him, and obtain the p re lim in a ry hearing tape. Counsel stated that there were no documents in his f ile showing any investigation was done prior to January 21; however, he and C ollin s, the Petitioner's original attorney, talked with the Petitioner prior to that d a te . Counsel requested discovery on November 19, 2002, and the State re sp o n d e d on January 10, 2003. Counsel admitted that, generally speaking, w itn e ss e s' memories are better the sooner they are interviewed. Counsel stated th a t both of the relevant bartenders were interviewed, and one of the b arten d ers stated that he had no recollection of the date in question. However, C o u n se l stated that the Petitioner told him that he did not go to the bar until 9 :0 0 p.m ., so any witnesses would have been after-the-fact witnesses. Counsel d id admit that this person could be relevant as an after-the-fact witness to d e sc rib e the Petitioner's appearance and lack of blood.

25

C o u n se l further testified that any discussion in the victim's medical file a b o u t who attacked her was not inconsistent with what she testified to at trial. T h u s , it was a tactical choice not to bring that issue up on cross-examination. In addressing the lack of a photograph of the Petitioner's penis, Counsel stated th a t there was no allegation of a bite mark, only a bite. So, there was no reason to photograph the penis. Counsel stated he did not intensively cross-examine th e victim as to her blood alcohol level because the State had already brought o u t that evidence. Counsel also testified that evidence regarding the victim's m en tal health was from several years before trial, and he therefore felt there w a s no need to address it. C o u n s e l stated that the main thing he remembered about the victim's te stim o n y at the preliminary hearing was that she said the Petitioner had the k n if e . At trial, the victim testified that the other man, not the Petitioner, held th e knife. Counsel made a tactical decision not to further question the victim o n this issue because he did not want to "put the knife in [the Petitioner's] h a n d s...." Counsel and his investigators searched for, but never found, the p re lim in a ry hearing tape. O n cross-examination, Counsel testified that he has been an attorney for e ig h t years, and his investigators have up to twenty years experience. Once the P e titio n e r was indicted, Counsel met with him, and his notes were reduced to a memo in which he requested his investigators interview the Petitioner and possib le witnesses. After all the interviews, Counsel determined these potential w itn e ss e s had no helpful information. The Petitioner asked Counsel to locate P a u lin e and BJ close to, or after, trial. Those two individuals were never f o u n d . Counsel was never given their last names or addresses. The in v e stig a to rs did locate Terry Luther, but his recollection coincided with that o f the victim. The investigators also attempted to obtain the videotapes from th e Favorite Market, but those tapes are re-used on a thirty-day cycle. A d d itio n a lly, there was no camera that focused on the exterior of the store. C o u n s e l stated that the person that the victim initially thought she recognized a s her cousin or someone she attended school with was the other assailant. A d d itio n ally, Counsel testified that there was no indication that any bite mark to the Petitioner's penis broke the skin, but, even if it had, it would have long sinc e healed by the time Counsel was appointed to represent the Petitioner. C o u n se l further testified that he cross-examined the DNA experts c o n c e r n i n g the lack of evidence linking the Petitioner to the victim. He also v ig o ro u s ly opposed the photographing of the Petitioner's tattoos. However, the 26

tria l court allowed the pictures to be taken. In addressing the venue issue, C o u n s e l stated that all normal procedures were followed during voir dire, and h e recalled that three jurors were excused by him for cause. Additionally, any ju ro rs who were exposed to pretrial publicity would have been excused by the tr ia l court. Counsel testified that he met with the Defendant at least ten times, th e y discussed the facts and developments, he apprised the Petitioner of any d e v e lo p m e n ts in discovery, and they also discussed potential defenses and s tra te g ie s. On re-direct examination, Counsel admitted that, as soon as Collins w a s appointed, he could have gone to talk to the Defendant about interviewing w itn e s s e s . T h e trial court determined that the Petitioner had not met his burden of p ro v in g ineffective assistance of counsel in that the evidence presented was to ta lly devoid of anything that would have had an effect on the outcome of tria l. The court found the defense's strategy was to claim the State had not met its burden of proof, and that was the best strategy in this case. The Petitioner's alleg atio n s were generalities, i.e., more could have been done. The trial court f o u n d Counsel and the Public Defender's Office did a thorough investigation in t o the facts and allegations. T h e trial court found that the State elicited the testimony concerning the v ic tim 's drinking "to try and steal the thunder of cross examination." Even after th a t, Counsel questioned the victim at length. As to the knife, Counsel made a n appropriate strategic decision to cross-examine the victim without affording th e victim an opportunity to testify that the knife was actually in the P e titio n e r's hands. The victim was also questioned about the statements in the m e d ic a l records, she explained them, and the jury chose to accredit her te stim o n y. The witnesses, BJ and Pauline, were not found by Counsel, nor w e re they found by the Petitioner for the post-conviction hearing. It was u n c le a r if these people even exist, and it was impossible to say they would h a v e helped the Petitioner in any way. Terry Luther was located and his te s tim o n y was not beneficial to the Petitioner. In fact, it supported the victim's v e r s i o n of the events. The two individuals at the bar, whom the Petitioner c la im e d would provide an alibi, were not able to do so. Counsel also a d e q u a te ly cross examined the witnesses about the lack of the Petitioner's D N A on the victim. As such, the Petitioner's petition was denied. Id . at **1-5 (footnote omitted).

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In analyzing Grunder's claims of ineffective assistance of counsel, the Tennessee C o u rt of Criminal Appeals first noted the two-part standard of review set forth in Strickland. Id . at *6 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). T h e appellate court then rejected Grunder's arguments: F irs t, addressing the Petitioner's claim that Counsel did not a p p ro p ria te ly investigate the case, the Petitioner had his preliminary hearing s o m e t im e in late August, 2002. He was indicted by the grand jury on N o v e m b e r 18, 2002, Counsel submitted discovery requests on November 19, 2 0 0 2 , and the State responded on January 10, 2003. Counsel requested his two i n v e s tig a tin g officers interview the Petitioner on January 21, 2003, and the P etitio n er's leads were tracked down shortly thereafter. Pauline and BJ were n e ith e r found by the investigators, nor were they produced at the p o s t-c o n v ic tio n hearing. Terry Luther was found, but his information was not h e lp f u l to the Petitioner. The two individuals at the bar were found and they s ta te d they could not remember the day in question. Although it is likely that th e se individuals' memories would have been clearer had they been in ter v iew e d earlier, such speculation is not sufficient evidence upon which to f in d Counsel was deficient. In cross-examining the victim, Counsel made the strategic decision not to inquire about inconsistencies in her testimony about who carried the knife. C o n c e rn in g the victim's drinking, Counsel questioned the victim on this issue f o r five pages of transcript. The victim also attempted to explain her problems in initially identifying the man whom the Petitioner was with. The jury heard th e evidence on this issue, and the victim's explanation was not wholly in c o n sis te n t with her statements in the medical reports. She initially thought th e man with the Petitioner was her cousin or someone with whom she a tte n d e d high school. Luther's recollection of the arrest coincided with that of th e victim, so there was no need to examine the victim on that issue. A d d itio n a lly, whether the Petitioner was spotted in a crow