Whited v. State of Tennessee

Filing 34

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Kevin H. Sharp on 9/6/2012. (xc:Pro se party by regular and certified mail.)(eh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

LARRY ALAN WHITED
Petitioner,

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v.
STATE OF TENNESSEE
Respondent.

No. 3:12-0400
Judge Sharp

M E M O R A N D U M
The petitioner, proceeding pro se, is an inmate at the Morgan
County Correctional Complex in Wartburg, Tennessee. He brings this
action pursuant to 28 U.S.C. § 2254 against the State of Tennessee,
seeking a writ of habeas corpus.
I. Background
On

April

petitioner

29,

guilty

2004,
of

a

jury

reckless

in

Sumner

endangerment,

County

found

the

three

counts

of

aggravated assault and second degree murder. Docket Entry No.21-1
at pg.137. For these crimes, he received an aggregate sentence of
forty five (45) years in prison. Id. at pgs.138-143.
On direct appeal, the Tennessee Court of Criminal Appeals
affirmed the petitioner’s convictions and sentences. Docket Entry
No.23-4. The Tennessee Supreme Court later denied petitioner’s
application for further review. Docket Entry No.23-6.

1

In June, 2007, the petitioner filed a pro se petition for
post-conviction relief in the Criminal Court of Sumner County.
Docket Entry No.24-4. Following the appointment of counsel and an
evidentiary hearing, the trial judge found that the petitioner had
raised a meritorious sentencing issue. The petitioner was granted
post-conviction relief in the form of a new sentencing hearing.
Docket Entry No.24-5.
A hearing was conducted and the petitioner was again sentenced
to serve forty five (45) years in prison. Docket Entry No.23-9. On
appeal,

the

Tennessee

Court

of

Criminal

Appeals

modified

petitioner’s sentences, giving him an effective sentence of thirty
four (34) years plus six months in prison. Docket Entry No.24-3.
II. Procedural History
In March, 2012, the petitioner submitted in this Court a
motion (Docket Entry No.1) asking for permission to file a petition
for habeas corpus relief. The petitioner’s motion was granted.
Docket Entry No.2.
On April 23, 2012, the petitioner filed a pro se petition for
writ of habeas corpus (Docket Entry No.7). In the petition, the
petitioner asserts two claims for relief. More specifically, he
alleges that :
1)

there was insufficient evidence to
support a conviction for second degree
murder; and

2)

the second degree murder conviction
should be overturned because the
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jury was not properly instructed “on
the entire basis of the second degree
murder circumstances” and “direct evidence
to prove the petitioner’s innocence of
the murder were excluded...”.
Upon receipt of the petition, the Court examined it and
concluded that the petitioner had stated a colorable claim for
relief. Accordingly, an order (Docket Entry No.8) was entered
directing the respondent to file an answer, plead or otherwise
respond to the petition. Rule 4, Rules - - - § 2254 Cases.
Presently pending before the Court is respondent’s Answer
(Docket Entry No.20) to the petition, to which the petitioner has
filed a Response (Docket Entry No.33) in Opposition to the Answer.
Having carefully considered the petition, respondent’s Answer,
petitioner’s Response in Opposition, 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 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 petition as the law and
justice require. Rule 8(a), Rules - - - § 2254 Cases.
III. Analysis of the Claims
A) Procedurally Defaulted Claim
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.
3

Cohen v. Tate, 779 F.2d 1181, 1184 (6th Cir.1985).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.
Granberry v. Greer, 107 S.Ct. 1671, 1674-1675 (1987). Thus, as a
condition precedent to seeking federal habeas corpus relief, the
petitioner is required to fairly present his claims to the state
courts. Rose v. Lundy, 102 S.Ct. 1198, 1205 (1982). A claim has
been fairly presented when the petitioner has raised both the
factual and legal basis for his claim in the state courts. Fulcher
v. Motley, 444 F.3d 791, 798 (6th Cir. 2006). Once his 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).1
The petitioner challenges only the validity of his conviction
for second degree murder. He has alleged that this conviction must
fall because the jury was not properly instructed by the trial
judge (Claim No.2). This claim, however, was never raised in the
state appellate courts on either direct appeal or during post-

1

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).
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conviction proceedings. See Docket Entry No.23-1 (direct appeal);
Docket Entry No.24-1 (post-conviction).
Unfortunately, at this late time, state court remedies for
this claim are no longer available. Tenn. Code Ann. § 40-30-102(a)
and (c). Therefore, by way of procedural default, the petitioner
has technically met the exhaustion requirement with respect to his
jury instruction claim. 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 federal 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
federal constitutional issues forfeits the right to federal review
of those issues, absent cause for the noncompliance and some
showing

of

actual

prejudice

resulting

from

the

alleged

constitutional violations. 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

5

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
establish prejudice, there must be a showing that the trial was
infected with constitutional error. United States v. Frady, 456
U.S. 152, 170-72 (1982).
The petitioner asserts that his failure to exhaust the jury
instruction claim in the state appellate courts is attributable to
the ineffectiveness of counsel. Docket Entry No.7 at pg.8. The
ineffectiveness of counsel can serve as cause for a procedural
default.

Murray,

supra

at

pgs.488-489.

However,

unless

the

ineffectiveness of 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

counsel

as

an

independent

constitutional claim in the state courts. Therefore, the petitioner
has not put forth cause and prejudice sufficient to excuse the
procedural default of his jury instruction claim.
B) Fully Exhausted Claim
The petitioner’s remaining claim, i.e., the sufficiency of the
evidence to support his conviction for second degree murder (Claim

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No.1), has been fully exhausted on the merits in the state courts
on direct appeal. Docket Entry No.23-1.
When a claim has been adjudicated on the merits in state
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 right to due process guaranteed to us by the Constitution
insures that no person will be made to suffer the onus of a
criminal conviction except upon sufficient proof. Sufficient proof

7

has been defined as the “evidence necessary to convince a trier of
fact beyond a reasonable doubt of the existence of every element of
the offense.” Jackson v. Virginia, 443 U.S. 307, 324 (1979). When
weighing the sufficiency of the evidence to support a criminal
conviction, the Court must view the evidence in a light most
favorable to the prosecution. Id.
The evidence shows that the petitioner and an associate,
William Rutherford, came to the door of some friends and were let
into their home. The petitioner was armed with an assault rifle
while

his

associate

possessed

a

pistol

given

to

him

by

the

petitioner.
Once inside the home, the armed pair demanded money that the
petitioner believed was owed to him. One of the residents, Charlie
DeMoss, struggled with Rutherford and was shot. Docket Entry No.216 at pg.127. DeMoss managed to flee from the home seeking help.
The petitioner then confronted a female resident, Rhonda
DeMoss, on the staircase while she was holding a baby. Brandon
Williams, a guest at the home, attempted to intervene. Rutherford
stopped Williams and escorted him into the kitchen. Seconds later,
shots were fired.2 The petitioner and his companion fled from the
scene. Williams was found in the kitchen bleeding from at least
three

gunshot

wounds.

Before

he

2

died,

Williams

told

another

The evidence revealed that Brandon Williams had been shot
at least twice in the back.
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resident that “William Rutherford did this”. Id. at pg.159.
Second degree murder is defined in Tennessee as the “knowing
killing

of

another”.

Tenn.

Code

Ann.

§

39-13-210(a)(1).

The

evidence clearly showed that it was Rutherford, and not the
petitioner, who shot and killed Brandon Williams. The petitioner,
however, can still be held criminally responsible for the murder
if, while “acting with intent to promote or assist the commission
of the offense,.... the person solicits, directs, aids, or attempts
to aid another person to commit the offense.” Tenn. Code Ann. § 3911-402(2).
In this instance, the evidence showed that the petitioner
recruited Rutherford to accompany him to the DeMoss home to get
some money and scare the residents. The petitioner gave Rutherford
the murder weapon and brought an assault rifle for his own use. The
armed pair used their weapons to threaten the residents of the
home. The petitioner later confessed his involvement in the plan to
rob the DeMoss family and frighten them. Docket Entry No.22-2 at
pgs.63-67.
From this proof, any rational jurors could have found beyond
a reasonable doubt that the petitioner was an accomplice to the
murder of Brandon Williams. Thus, the state courts did not offend
federal law by finding that the evidence was sufficient to support
the petitioner’s conviction for second degree murder.

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IV. CONCLUSION
For the reasons noted above, the petitioner has failed to
state a claim upon which habeas corpus relief can be granted.
Therefore, his petition will be denied and this action shall be
dismissed.

____________________________
Kevin H. Sharp
United States District Judge

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