Dickens v. Osborne
Filing
59
MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 11/28/12. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
BENJAMIN ASHLEY RAY DICKENS
Petitioner,
v.
JOE EASTERLING, WARDEN
Respondent.
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No. 3:11-1203
Judge Trauger
M E M O R A N D U M
The petitioner, proceeding pro se, is an inmate at the West
Tennessee State Penitentiary in Henning, Tennessee. He brings this
action pursuant to 28 U.S.C. § 2254 against Joe Easterling, his
former custodian at the Hardeman County Correctional Facility,
seeking a writ of habeas corpus.1
I. Background
On May 9, 2006, a jury in Davidson County found the petitioner
guilty of first degree felony murder. Docket Entry No.42-1 at
1
When this action began, the petitioner was an inmate at
the Morgan County Correctional Complex. David Osborne is Warden
there and he was named as respondent. Later, the petitioner was
transferred to the Hardeman County Correctional Facility where
Joe Easterling is Warden. Docket Entry No.40. On respondent’s
motion, Joe Easterling replaced David Osborne as respondent.
Docket Entry No.48. The petitioner has since been transferred
again to his present place of confinement. Docket Entry No.57. No
effort has been made to replace Joe Easterling with petitioner’s
current custodian.
1
pg.28. For this crime, he received a sentence of life imprisonment.
Id. at pg.30. On direct appeal, the Tennessee Court of Criminal
Appeals affirmed the petitioner’s conviction and sentence. Docket
Entry
No.42-7.
The
Tennessee
Supreme
Court
later
denied
petitioner’s application for further review. Docket Entry No.42-9.
In November, 2008, the petitioner filed a pro se petition for
post-conviction relief in the Criminal Court of Davidson County.
Docket Entry No.43-1 at pgs.6-13. Following the appointment of
counsel, amendments to the petition and an evidentiary hearing, the
petitioner was denied post-conviction relief. Id. at pgs.56-63. On
appeal, the Tennessee Court of Criminal Appeals affirmed the denial
of post-conviction relief. Docket Entry No.43-7.
II. Procedural History
On December 19, 2011, the petitioner initiated this action
with the pro se filing of a petition for writ of habeas corpus
(Docket Entry No.1). By an order (Docket Entry No.4) entered four
days later, the respondent was directed to file an answer, plead or
otherwise respond to the petition.
Before a response to the petition was filed, the petitioner
moved the Court to hold his petition in abeyance to allow him an
opportunity to fully exhaust all state court remedies. Docket Entry
No.10. The petitioner’s motion was granted and this action was
administratively closed. Docket Entry No.13.
In March, 2012, the petitioner filed a motion asking for the
2
case to be reopened. Docket Entry No.17. The motion was granted and
the respondent was again directed to file an answer, plead or
otherwise respond to the petition. Docket Entry No.18.
On July 6, 2012, the respondent filed an Answer to the
petition. Docket Entry No.41. The petitioner was then granted leave
to file an amended petition. Docket Entry No.48.
Presently
before
the
Court
is
the
petitioner’s
amended
petition (Docket Entry No.51), to which the respondent has filed an
amended Answer (Docket Entry No.58).
In the amended petition, the petitioner asserts fourteen (14)
claims for relief. More specifically, he alleges that
1)
counsel was ineffective because he
neglected to seek a negotiated settlement
of the case prior to trial;2
2)
counsel was ineffective because he
abandoned their agreed upon defense,
i.e., that petitioner was buying marijuana
without any knowledge that a robbery
was taking place;
3)
counsel was ineffective when he made
“discouraging and incriminating” statements
to the jury that ultimately persuaded it
to believe that the petitioner was guilty
of robbery;
4)
counsel was ineffective because he failed
to impeach prosecution witnesses with
proof that they were drug dealers;
5)
counsel was ineffective for failing to
challenge the testimony of Christopher
2
At trial, the petitioner was represented by Michael J.
Flanagan, a member of the Davidson County Bar.
3
Crockett regarding the locks to the door
being broken;
6)
counsel was ineffective for failing to
hire a private investigator;
7)
counsel was ineffective for neglecting to
subpoena Detective Kelton to impeach the
testimony of Christopher Crockett regarding
ownership of drugs and scales;
8)
counsel was ineffective for telling the
jury “you promised you would listen to the
evidence from the witness stand and base
your decision only on that”;
9)
counsel was ineffective for not emphasizing
to the jury that the petitioner had not worn
a mask during the robbery;
10)
counsel was ineffective for failing to
impeach the testimony of Christopher Crockett
with his prior criminal record;
11)
counsel was ineffective for not doing more
to impeach the testimony of Mary Jane Crockett
and Christopher Crockett;
12)
counsel was ineffective for neglecting to
hire an independent psychologist and psychiatrist
to fairly evaluate his mental state;
13)
the prosecutor acted improperly by appealing
to the jurors as parents of small children and
by vouching for the petitioner’s guilt beyond
a reasonable doubt; and
14)
the prosecutor acted improperly when he
“used a false impression of evidence to support
his case”.
Having carefully considered the amended petition, respondent’s
amended
Answer
and
the
expanded
record,
it
appears
that
an
evidentiary hearing is not needed in this matter. See Smith v.
United States of America, 348 F.3d 545, 550 (6th Cir. 2003)(an
4
evidentiary hearing is not required when the record conclusively
shows that the petitioner is entitled to no relief). Therefore, the
Court shall dispose of the amended petition as the law and justice
require. Rule 8(a), Rules - - - § 2254 Cases.
III. Analysis of the Claims
1) Procedurally Defaulted Claims
A federal district court will not entertain a petition for
writ of habeas corpus unless the petitioner has first exhausted all
available state court remedies for each claim in his petition.
Cohen v. Tate, 779 F.2d 1181, 1184 (6th Cir.1985); 28 U.S.C. §
2254(b)(1).
While exhaustion is not a jurisdictional requirement, it is a
strictly enforced doctrine which promotes comity between the states
and federal government by giving the state an initial opportunity
to pass upon and correct alleged violations of its prisoners’
federal rights. O’Sullivan v. Boerckel, 526 U.S. 838,845 (1999).
Consequently, as a condition precedent to seeking federal habeas
corpus relief, the petitioner is required to fairly present his
claims to every available level of the state court system. Rose v.
Lundy, 455 U.S. 509,518-520 (1982); Lyons v. Stovall, 188 F.3d
327,331 (6th Cir.1999). A claim has been fairly presented when the
petitioner has raised both the factual and legal bases for his
claim in the state courts. Fulcher v. Motley, 444 F.3d 791, 798 (6th
Cir. 2006). In other words, the petitioner must present “the same
5
claim under the same theory” to the state courts. Hicks v. Straub,
377 F.3d 538,552 (6th Cir.2004). It is not enough that all the facts
necessary to support a federal claim were before the court or that
the petitioner raised a somewhat similar state law claim. Anderson
v. Harless, 459 U.S. 4,6 (1982).
Once petitioner’s federal claims have been raised in the
highest
state
court
available,
the
exhaustion
requirement
is
satisfied, even if that court refused to consider the claims.
Wilson v. Mitchell, 498 F.3d 491, 498-99 (6th Cir. 2007).3
The petitioner alleges that counsel was ineffective for making
“discouraging and incriminating” statements to the jury (Claim
No.3), for failing to hire a private investigator (Claim No.6), for
telling the jury “you promised you would listen to the evidence
from the witness stand and base your decision only on that” (Claim
No.8), and for not doing more to impeach the testimony of Mary and
Christopher Crockett (Claim No.11).
These claims were never raised in the state courts on either
direct appeal or during post-conviction proceedings. See Docket
Entry
No.42-5
(direct
appeal);
Docket
Entry
No.43-5
(post-
conviction). Unfortunately, at this late date, state court remedies
for these claims are no longer available. Tenn. Code Ann. § 40-30-
3
In Tennessee, a petitioner need only take his claims to
the Tennessee Court of Criminal Appeals in order to fully exhaust
his available state court remedies. Rule 39, Tenn. Sup. Ct.
Rules; Adams v. Holland, 324 F.3d 838 (6th Cir. 2003).
6
102(a) and (c). Therefore, by way of procedural default, the
petitioner has technically met the exhaustion requirement with
respect to these claims. Alley v. Bell, 307 F.3d 380, 385 (6th Cir.
2002)(if an unexhausted claim would be procedurally barred under
state law, that claim is procedurally defaulted for purposes of
federal habeas corpus review).
The exhaustion of a claim via procedural default does not,
however, automatically entitle a habeas petitioner to federal
review
of
that
claim.
To
prevent
a
habeas
petitioner
from
circumventing the exhaustion requirement in such a manner, the
Supreme Court has held that a petitioner who fails to comply with
state rules of procedure governing the timely presentation of a
federal constitutional issue forfeits the right to federal review
of that issue, absent cause for the noncompliance and some showing
of actual prejudice resulting from the alleged constitutional
violation. Gray v. Netherland, 518 U.S. 152,162 (1996).
A habeas petitioner can not rely on conclusory assertions of
cause and prejudice to overcome the adverse effects of a procedural
default. Rather, he must present affirmative evidence or argument
as
to
the
precise
cause
and
prejudice
produced.
Lundgren
v.
Mitchell, 440 F.3d 754,764 (6th Cir.2006). To demonstrate cause, the
petitioner must show that an objective factor external to the
defense interfered with his ability to comply with the state
procedural rule. Murray v. Carrier, 477 U.S. 478,488 (1986). To
7
establish prejudice, there must be a showing that the trial was
infected with constitutional error. United States v. Frady, 456
U.S. 152,170-172 (1982).
Here, the petitioner asserts that the failure to raise his
unexhausted ineffective assistance claims is attributable to postconviction appellate counsel. Docket Entry No.51 at pg.26. The
ineffectiveness of appellate counsel can serve as cause for a
procedural default. Murray, supra at pgs.488-489. However, unless
the ineffectiveness of appellate counsel has itself already been
fully exhausted as an independent constitutional claim, it cannot
serve as cause for another procedurally defaulted claim. Edwards v.
Carpenter, 529 U.S. 446,453 (2000). In this regard, the petitioner
has never alleged the ineffectiveness of post-conviction appellate
counsel as an independent constitutional claim in the state courts.
Nor has he shown prejudice resulting from the alleged unexhausted
instances of ineffective assistance. Consequently, these claims
(Claim Nos.3,6,8 and 11) will not support an award of habeas corpus
relief.
During post-conviction proceedings, the petitioner alleged
misconduct on the part of the prosecutor during closing arguments
(Claim Nos.13 and 14). The state courts found that these claims had
been waived because they could have been raised on direct appeal
but were not. Docket Entry No.43-7 at pgs.11-12.
Waiver is an adequate and independent state ground that will
8
support a finding of procedural default. Cone v. Bell, 492 F.3d
743,758 (6th Cir.2007). The petitioner did not raise these claims
on direct appeal even though they were available to him. Docket
Entry No.42-5. He has offered no cause and prejudice from which his
procedural default of these claims could be excused. Therefore,
these claims are also insufficient to support an award of habeas
corpus relief.
2) Fully Exhausted Claims
The petitioner’s remaining claims allege that trial counsel
had been ineffective in other ways. More specifically, counsel
neglected to seek a negotiated settlement of the charge prior to
trial (Claim No.1), counsel abandoned the agreed upon defense
(Claim
No.2),
testimony
of
counsel
should
prosecution
have
witnesses
done
more
(Claim
to
impeach
Nos.4,5,7
and
the
10),
counsel failed to emphasize to the jury that the petitioner had not
worn a mask during the robbery (Claim No.9), and counsel should
have hired an independent psychologist and psychiatrist to fairly
evaluate the petitioner’s mental state (Claim No.12).4
Each of these claims was fully exhausted on the merits in the
state courts during post-conviction proceedings. See Docket Entry
No.43-5. When a claim has been adjudicated on the merits in state
4
The petitioner was represented by at least two other
attorneys (Michael Sneed and Michael Urquhart) before Michael
Flanagan was appointed to represent him. Docket Entry No.43-2 at
pg.72.
9
court, the state court adjudication will not be disturbed unless it
resulted in a decision contrary to clearly established federal law
or involved an unreasonable application of federal law in light of
the evidence. 28 U.S.C. § 2254(d); Nevers v. Killinger, 169 F.3d
352, 357 (6th Cir.1999). In order for a state adjudication to run
“contrary to” clearly established federal law, the state court must
arrive at a conclusion opposite to that reached by the United
States Supreme Court on a question of law or decide a case
differently than the United States Supreme Court on a set of
materially indistinguishable facts. To grant the writ for an
“unreasonable application” of federal law, the petitioner must show
that
the
state
court
identified
the
correct
governing
legal
principle involved but unreasonably applied that principle to the
facts of the case. Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
In short, state court judgments must be upheld unless, after an
examination of the state court judgment, the Court is firmly
convinced that a federal constitutional right has been violated.
Id. at 529 U.S. 389.
The Sixth Amendment provides that a criminal defendant is
entitled
to
the
effective
assistance
of
counsel.
McMann
v.
Richardson, 379 U.S. 759, 771 (1970). To establish a violation of
this right, the petitioner bears the burden of pleading and proving
that his attorney’s performance was in some way deficient and that
the
defense
was
prejudiced
as
10
a
result
of
the
deficiency.
Strickland v. Washington, 466 U.S. 668 (1984). Prejudice arises
when there is a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different. Id.
at 466 U.S. 694. When considering such a claim, counsel is strongly
presumed
to
have
rendered
adequate
assistance
and
made
all
significant decisions in the exercise of reasonable professional
judgment. Mallett v. United States, 334 F.3d 491, 497 (6th Cir.
2003).
The
petitioner
alleges
that
counsel
was
ineffective
for
neglecting to seek a negotiated settlement of the case prior to
trial (Claim No.1).
At petitioner’s post-conviction evidentiary hearing, counsel
testified
that
he
did
engage
in
plea
negotiations
with
the
prosecutor for a settlement involving a sentence of thirty five
(35) years in prison. Docket Entry No.43-2 at pgs.73-74. Counsel
stated that he discussed a possible plea with the petitioner but
that he would not agree to accepting a thirty five year sentence.
Id. at pg.88. Counsel’s testimony was in direct conflict with that
of
the
petitioner.
The
state
trial
court
chose
to
accredit
counsel’s testimony over that of the petitioner. Docket Entry
No.43-1 at pgs.57-58. The petitioner has offered nothing in the way
of
evidence
suggesting
that
counsel
was
untruthful
about
negotiating with the prosecutor. Nor would counsel be ineffective
simply because the petitioner did not like the offer negotiated by
11
counsel. Therefore, the state courts did not violate federal law by
finding that counsel had not been ineffective in this regard.
The petitioner next claims that counsel was ineffective for
abandoning their agreed upon defense, i.e., that the petitioner was
at the scene to buy some marijuana and that he had no involvement
in a robbery and felony murder (Claim No.2).
At trial, testimony from prosecution witnesses (Mary Crockett
Green and Christopher Crockett) made such a defense untenable.
These witnesses told the jury that the petitioner arrived at the
scene brandishing a pistol and demanding money. Docket Entry No.422 at pgs.18,51-53. The jury was also told that the petitioner later
exchanged gunfire with one of the prosecution witnesses. Id. at
pg.69. Thus, the evidence showed that the petitioner had arrived at
the scene with a weapon demanding money and that he discharged the
weapon at the scene.
In light of this testimony, counsel developed a defense that
would potentially explain petitioner’s possession and use of a
weapon. Counsel sought to convince the jury that the petitioner had
come to the scene to rob its occupants and was unaware that a
second robbery and murder was taking place. Docket Entry No.43-2 at
pg.80. While this defense was wholly unsuccessful, it was developed
to fit the testimony elicited from prosecution witnesses. Modifying
a defense to fit the evidence is a tactical decision and tactical
decisions
are
particularly
difficult
12
to
attack.
O’Hara
v.
Wigginton, 24 F.3d 823,828 (6th Cir.1994). According to counsel, the
petitioner did not specifically identify what he wanted his defense
to be. Id. at pg.96. In any event, the petitioner has failed to
show how he was prejudiced by counsel’s failure to argue a defense
in which he was at the scene simply to purchase drugs. As a
consequence, counsel was not ineffective in this instance.
Counsel was next ineffective for allegedly failing to impeach
the testimony of certain prosecution witnesses (Claim Nos.3,4,7 and
10).
The petitioner contends that counsel should have done more to
impeach the testimony of the prosecution witnesses by showing that
they were drug dealers whose word could not be trusted. At trial,
counsel
asked
one
of
the
prosecution
witnesses
(Christopher
Crockett) if he had left the house before the police arrived to
dispose of some illegal drugs in a trash can. That witness invoked
his
rights
under
the
Fifth
Amendment
rather
than
answer
the
question. Docket Entry No.42-2 at pg.88. The witness also pled the
Fifth Amendment when asked if he had ever stored marijuana in the
house. Id. at pg.97. Large amounts of drugs and cash were recovered
from
the
crime
scene.
The
prosecution
made
reference
to
a
prosecution witness being a drug dealer in closing argument. Docket
Entry No.43-1 at pg.59. The jury, then, was well aware that the
“victims’ were involved in illicit drugs. The petitioner has failed
to show how additional impeachment of their testimony would have
13
rendered a different verdict. Therefore, these claims are without
merit.
The petitioner’s next claim is that counsel was ineffective
for not emphasizing to the jury that the petitioner had not worn a
mask, thus bolstering his assertion that he was there to buy drugs
rather than rob the victims (Claim No.9).
The victims had no difficulty identifying the petitioner as
the man who had entered their home brandishing a pistol and
demanding money. Neither suggested in their testimony that the
petitioner had worn a mask. Consequently, the petitioner has failed
to show in what way further mention of his unmasked face would have
been of benefit to him.
Finally, the petitioner believes that counsel was ineffective
for neglecting to hire an independent psychologist and psychiatrist
to evaluate his mental state (Claim No.12).
Prior to trial, a psychiatric evaluation of the petitioner was
conducted at the Vanderbilt Medical Center. Docket Entry No.43-4 at
pg.13. Petitioner was then ordered to submit to further evaluation
at the Regional Mental Health Facility. Id. at pg.15. It was
determined that the petitioner was competent to stand trial. The
petitioner has offered no factual allegations to suggest that
further evaluation by independent sources would have led to a
different conclusion. Thus, the petitioner has failed to show in
what way counsel was ineffective in this regard.
14
IV. CONCLUSION
The state courts applied the holding of Strickland, supra, to
petitioner’s fully exhausted ineffective assistance claims and
found that counsel had, under the circumstances, acted reasonably
and in a manner that did not prejudice the defense. The record
supports these findings. The petitioner has offered no clear and
convincing evidence to rebut the presumption of correctness that
must be accorded the factual findings made by the state courts. 28
U.S.C. § 2254(e)(1). Nor has the petitioner demonstrated in what
way the legal analysis of the state courts runs contrary to federal
law. Accordingly, having carefully reviewed the record, it appears
that the state court adjudication of petitioner’s remaining claims
was neither contrary to nor an unreasonable application of federal
law. Consequently, petitioner’s remaining claims have no merit.
____________________________
Aleta A. Trauger
United States District Judge
15
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