Bullard v. Sexton
MEMORANDUM OF THE COURT. Signed by District Judge Todd J. Campbell on 3/27/13. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(rd)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
DAVID A. SEXTON, WARDEN
M E M O R A N D U M
The petitioner, proceeding
pro se, is an inmate at the
Northeast Correctional Complex in Mountain City, Tennessee. He
brings this action pursuant to 28 U.S.C. § 2254 against David
Sexton, Warden of the facility, seeking a writ of habeas corpus.
In October, 2007, a jury in Rutherford County found the
petitioner guilty of aggravated assault and attempted aggravated
rape. Docket Entry No.22-1 at pg.44. For these crimes, he received
consecutive sentences of eight years and fifteen (15) years in
prison, respectively. Docket Entry No.22-4 at pgs.183-184.
On direct appeal, the petitioner argued that the evidence was
insufficient to support the convictions. Docket Entry No.22-8 at
pgs.12-19. The Tennessee Court of Criminal Appeals rejected this
argument and affirmed the convictions. Id. at pgs.45-53.
The petitioner then filed a pro se petition for state postconviction relief in the Circuit Court of Rutherford County. Docket
Entry No.22-9 at pgs.4-24. Following the appointment of counsel and
an evidentiary hearing, the trial court denied the petitioner postconviction relief. Id. at pgs.37-41.
On appeal, the petitioner claimed that he had been denied the
effective assistance of trial counsel. Docket Entry No.22-11 at
pgs.12-15. The Tennessee Court of Criminal Appeals found that
counsel had been effective and affirmed the denial of postconviction relief. Id. at pgs.52-57. The Tennessee Supreme Court
later denied petitioner’s application for further post-conviction
review. Id. at pg.73.
II. Procedural History
On January 11, 2013, the petitioner initiated the instant
action with the pro se filing of a petition (Docket Entry No.1) for
writ of habeas corpus. In the petition, the petitioner sets forth
five claims for relief. These claims include :
the evidence was insufficient to sustain
a conviction for aggravated assault because
there was no use of a deadly weapon or
serious bodily injury shown;
the evidence was insufficient to support
a conviction for attempted aggravated rape
because there was no proof of intent to
rape the victim;
the petitioner was denied the effective
assistance of counsel when his attorney
neglected to cross examine the victim;
the petitioner was denied the effective
assistance of counsel because his attorney
failed to cross examine the investigating
officer as to why he didn’t initially charge
the petitioner with an attempted aggravated
the petitioner was denied the effective
assistance of counsel when his attorney
failed to “offer any proof in defense”.2
determined that the petitioner had stated a colorable claim for
relief. Accordingly, an order (Docket Entry No.9) was entered
directing the respondent to file an answer, plead or otherwise
respond to the petition.
Presently before the Court is the respondent’s Answer (Docket
Entry No.21), to which the petitioner has offered no reply. Having
carefully considered the petition, respondent’s 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 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
At trial, the petitioner was represented by Jerry Farmer,
a member of the Rutherford County Bar.
The petitioner states that he is challenging counsel’s
representation only as it pertains to the attempted aggravated
rape charge. Docket Entry No.2 at pg.21.
III. Analysis of the Claims
It appears from the record, and the respondent concedes, that
the petitioner has fully exhausted his federal habeas claims in the
state courts prior to bringing them here for review. Docket Entry
No.21 at pg.2.
The availability of federal habeas corpus relief is limited
with respect to claims that have been previously adjudicated on the
merits in state court. Harrington v. Richter, 131 S.Ct. 770,780
(2011). When claims have been adjudicated on the merits in state
court, as was the case here, the state court adjudication of those
claims will not be disturbed unless it resulted in a decision
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
In order for a state adjudication to run “contrary to” clearly
conclusion opposite to that reached by the United States Supreme
Court on a question of law or decide a case differently than the
indistinguishable facts. Lundgren v. Mitchell, 440 F.3d 754,762 (6th
Cir.2006), citing Williams v. Taylor, 529 U.S. 362,413 (2000). 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. Id. In short, state court
judgments must be upheld unless the Court finds that the state
court’s application of federal law was “objectively unreasonable”,
rather than simply incorrect. Goodell v. Williams, 643 F.3d 490,495
(6th Cir.2011). In order to find that a state court’s application
of federal law was unreasonable, the Court must be convinced that
“there is no possibility fairminded jurists could disagree that the
precedents.” Harrington, supra at 131 S.Ct. 786.
1.) Sufficiency of the Evidence
The right to due process guaranteed by the Constitution
insures that no person will be made to suffer the onus of a
criminal conviction except upon sufficient proof. Sufficient proof
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. 307,316 (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., at pg.319. The only question
unsupportable as to fall below the threshold of bare rationality.”
Cavazos v. Smith, 132 S.Ct. 2,4 (2011).
Teresa Yearick was the victim in this case. The petitioner is
her brother. Docket Entry No.22-3 at pg.7. According to testimony
from the trial, an argument broke out between them when Teresa was
unable to repay the petitioner for a television he had bought for
her. Id. at pg.15. The petitioner became so enraged at his sister’s
inability to repay him that he went to her bedroom, retrieved the
television and threw it out the front door onto the stoop. Id. at
When Teresa threatened to call the police, the petitioner took
a hammer outside and began to strike the windshield of her car with
it. Id. at pg.16. He went back into the house and grabbed the
victim by her hair. The petitioner then started punching her in the
face and slammed her head into the wall. Id. at pgs.16-17. He
choked Teresa so hard that her eyes began to bleed. Id. at pg.17.
The victim tried to get to the bathroom for safety but the
petitioner caught up with her. Teresa remembered the petitioner
beating her head against the linoleum floor in the bathroom. Id.
She managed to reach the bath tub when the petitioner grabbed a
container of liquid detergent and started pouring it over her head
and in her eyes. He tried to make Teresa drink the detergent. Id.
The petitioner then urinated on his sister. Id. at pgs.17-18.
The petitioner stripped naked and got into the shower. He
demanded that the victim remove her clothes as well. When she had
removed everything but her bra, the petitioner yelled at her to
shut the bathroom door and join him in the shower. Id. at pg.18.
She feigned compliance but fled from the house and ran across the
street where neighbors took her in and called the police. Id.
Neighbors confirmed seeing the victim run across the street
wearing only a bra. Docket Entry No.22-2 at pgs.116-117. They told
police that “She had like laundry detergent dripping from her all
over her body. Her hair was like really soaked. She looked really
all beat up. One side of her face was swollen.” Id. at pg.110. The
first police officer on the scene noticed a damaged television on
the stoop and a car in the driveway with a cracked windshield.
Docket Entry No.22-3 at pgs.31-32. As police approached the house,
the petitioner came out onto the porch wearing only an unbuttoned
shirt and underwear. “He appeared to be wet or sweating profusely.”
Id. at pg.32. Police entered the house and noticed the living room
was in disarray. In the bathroom, there was blue liquid on the
floor along with strands of hair. Officers found the victim’s cell
phone in the toilet and an empty detergent bottle on the floor. Id.
The victim was taken to the hospital and was released later
that evening. Teresa’s injuries included bruises and scratches on
her arms, both eyes swollen, a broken nose, and permanent damage to
her vision (brown splotches). Id. at pgs.24-26. Teresa took a week
off from work and when she returned, three co-workers “had to turn
their face and look away because I looked so bad.” Id. at pgs.26-
In his first claim, the petitioner asserts that there was
insufficient evidence to find him guilty of aggravated assault
because there was no showing of a deadly weapon being used or
serious bodily injury to the victim (Claim No.1).
An individual in Tennessee commits aggravated assault when he
intentionally, knowingly or recklessly causes serious bodily injury
to another or uses or displays a deadly weapon. Tenn. Code Ann. §
39-13-102(a)(1). In his petition, the petitioner concedes that he
assaulted the victim. Docket Entry No.1 at pg.5. Petitioner’s
claim, therefore, rests on whether he caused his sister serious
bodily injury or used or displayed a deadly weapon in assaulting
The state courts found, and this Court agrees, that a deadly
weapon was not used during the assault. Docket Entry No.22-8 at
pg.49. Thus, petitioner’s claim has merit only if there was no
evidence to suggest that the victim suffered a serious bodily
injury during the attack.
Tennessee law defines serious bodily injury as an injury that
unconsciousness, (3) extreme physical pain, (4) protracted or
impairment of a function of a bodily member, organ or mental
faculty. Tenn. Code Ann. § 39-11-106(34).
The state courts concluded that there was evidence sufficient
petitioner. Docket Entry No.22-8 at pg.49. This Court agrees with
that assessment of the evidence. From the testimony given at trial,
a jury could have easily found that the victim suffered a serious
bodily injury as a result of the extreme physical pain suffered
from being punched in the face and having her head slammed into a
wall and the bathroom floor, the permanent damage the victim
sustained to her eye, and the disfigurement that the victim’s coworkers witnessed when she returned to work after the assault. As
a consequence, the Court finds no merit in this claim.
The petitioner next argues that the evidence was insufficient
to support his conviction for attempted aggravated rape (Claim
penetration of a victim by the defendant accompanied by any of the
following circumstances .... where “the defendant causes bodily
injury to the victim.” Tenn. Code Ann. § 39-13-502(a)(2). “Sexual
penetration” is defined as any intrusion, however slight, of any
part of a person’s body or of any object into the genital or anal
openings of the victim .... but emission of semen is not required.
Tenn. Code Ann. § 39-13-501. To prove attempted aggravated rape,
petitioner’s conduct constituted a substantial step toward the
commission of aggravated rape and that he acted intending to commit
aggravated rape. Tenn. Code Ann. § 39-12-101(a)(3).
The evidence shows that the petitioner inflicted serious
bodily harm upon his sister. As her condition weakened, he disrobed
and commanded her to do so as well. The petitioner stepped into the
shower and ordered the victim to close the bathroom door and join
him. Given the petitioner’s nakedness, his desire that the bathroom
door be closed for privacy, and that the victim disrobe and join
him in the shower, the state courts did not offend federal law by
finding that the petitioner had intended to commit an aggravated
rape of his sister and that he had taken a substantial step toward
that end. As a consequence, petitioner’s claim that the evidence
was insufficient to sustain a conviction for attempted aggravated
rape lacks merit.
2.) Ineffective Assistance of Counsel
The petitioner’s final claims question the effectiveness of
counsel. More specifically, he asserts that counsel was ineffective
for neglecting to cross examine the victim (Claim No.3), failing to
cross examine the investigating police officer as to why the
petitioner was not initially charged with attempted aggravated rape
(Claim No.4), and for failing to offer any proof on behalf of the
petitioner (Claim No.5).
The Sixth Amendment provides that a criminal defendant is
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 fell below an objective standard of
reasonableness and that the defense was prejudiced as a result of
the deficiency. Carter v. Bell, 218 F.3d 581,591 (6th Cir.2000),
citing 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).
attorney testified that the defense strategy was “to beat the
attempted aggravated rape charge”. Docket Entry No.22-10 at pg.23.
When the victim never mentioned rape during direct examination,
Docket Entry No.22-3 at pgs.1-27, counsel chose not to cross
examine her and give the victim an opportunity to tell the jury
that her brother intended to rape her. Docket Entry No.22-10 at
pg.24. He explained that the decision was strategic and was meant
to bolster the petitioner’s position that he never intended to rape
his sister. Id. at pg.10. Counsel recalled discussing this decision
with the petitioner and “he went along with my advice at the time.”
Id. at pg.11.
In preparation for trial, counsel testified that he reviewed
the investigating officer’s report and that he spoke with both the
petitioner’s father and girlfriend to determine whether their
testimony could help the defense. Id. at pgs.14-17. Counsel felt
that neither the father nor the girlfriend would have added
anything of benefit to the defense. He also decided that the
petitioner should not testify because “he had problems controlling
his anger”. Id. at pg.12. Counsel further recalled that “Mr.
Bullard had given me several different versions of the story prior
to trial”, and counsel was sensitive to the possibility of perjury.
Id. at pg.22.
evidentiary hearing. He recalled discussing defense strategy with
his attorney. Id. at pg.32. Petitioner wanted counsel to call his
father and girlfriend as witnesses because they could describe for
the jury the victim’s manipulative nature. Id. at pg.34. He felt
that such testimony could have, in some way, justified his attack
upon the victim. The petitioner did admit, though, “Yeah, that’s
true. I beat her up. Yeah, I yanked the hair out of her head. Yeah,
I smacked her around. Yeah, I threw laundry detergent on her.” Id.
examination of the victim would have altered the jury’s verdict in
this case. Nor has he explained what evidence could have been
presented on his behalf that might have led the jury to a different
result. The petitioner, therefore, has failed to prove that he was
prejudiced in any way by counsel’s alleged deficiencies. Thus, the
state courts properly ruled that the petitioner had not been denied
the effective assistance of counsel.
exhausted claims lacked merit. The record supports these findings.
The petitioner has failed to rebut the presumption of correctness
accorded to the findings of fact made by the state courts with
clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Nor has he
shown in what way the legal conclusions made by the state courts
unreasonable application of federal law. Consequently, petitioner’s
claims are insufficient to support an award of habeas corpus
An appropriate order will be entered.
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?