Wolfe v. Westbrooks

Filing 38

ORDER: Petitioner's objections are overruled. Magistrate Judge Holmes' Report and Recommendations 36 is hereby accepted and adopted as the findings and conclusions of the Court. Petitioner's application for a writ of habeas corpus is denied. Petitioner may not proceed on appeal in forma pauperis because no appeal in this matter could be taken in good faith. No certificate of appealability shall issue because petitioner has not made a substantial showing that his constitutional rights were violated when his trial attorney failed to have him psychologically evaluated. Signed by Senior Judge Bernard A. Friedman on 3/18/19. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
TONY WOLFE,
Petitioner,
vs.

Civil Action No. 3:14-CV-1575
HON. BERNARD A. FRIEDMAN

BRUCE WESTBROOKS,
Respondent.
______________________/
ORDER ACCEPTING AND ADOPTING MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION AND DENYING PETITIONER’S
APPLICATION FOR A WRIT OF HABEAS CORPUS
In this matter, petitioner Tony Wolfe has filed an application for a writ of habeas
corpus. Magistrate Judge Barbara Holmes has submitted a report and recommendation (“R&R”) in
which she recommends that the Court deny the application. Petitioner has filed timely objections
to which respondent has not responded.
Under Fed. R. Civ. P. 72(b)(3), the Court must review de novo those portions of the
R&R to which petitioner properly objects. In this case, petitioner objects to just one aspect of the
R&R, namely, the analysis of his claim that his trial attorney
was ineffective pretrial for failing to have a forensic mental
evaluation conducted of Wolfe. A forensic evaluation would have
diagnosed Wolfe with PTSD stemming from the 1997 shooting, and
would have been critical evidence that both (a) supported his claim
of self-defense, and (b) tended to negate the claim of premeditated
first degree murder. Simply by negating the premeditation element,
a forensic evaluation could have established that Mr. Wolfe was not
guilty of First Degree Murder and prevented this conviction.
Am. Pet. at 8 ¶ 1. As further articulated in his memorandum in support of his motion to amend,
petitioner’s argument is that

[i]f a forensic psychologist had diagnosed Wolfe with the PTSD prior
to trial, evidence could have been presented that Wolfe suffered from
an undiagnosed, untreated mental health disorder which impaired his
judgment and perception and could have caused a fear-based
overreaction to the situation. . . . Clearly, the evidence of Mr.
Wolfe’s PTSD as well as the fact that Mr. Wolfe was not receiving
treatment or medications on September 11, 2004 would have tended
to negate the premeditation element, rendering Wolfe innocent of
First Degree Murder.
Pet’r’s Mem. in Supp. of Mot. to Am. Pet. (docket entry 18) (PageID 2615-16).
Petitioner appears to concede, as the magistrate judge correctly found at pages 13-14
of her R&R, that this claim has been procedurally defaulted and, further, that he has not shown cause
for the default. Under these circumstances – as petitioner appears to concede as well – the claim may
proceed despite this procedural bar only if petitioner “show[s] that ‘a constitutional violation has
probably resulted in the conviction of one who is actually innocent.’ To establish the requisite
probability, the petitioner must show that it is more likely than not that no reasonable juror would
have convicted him in the light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 327 (1995)
(quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). Further, “[t]o be credible, such a claim
requires petitioner to support his allegations of constitutional error with new reliable evidence –
whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence – that was not presented at trial.” Id. at 324.
Citing case authority from the Sixth Circuit and this district, the magistrate judge
rejected petitioner’s failure-to-evaluate claim on the grounds that “it attacks the legal sufficiency of
[petitioner’s] conviction and fails to show his actual, or factual, innocence of killing his victim.”
R&R at 14-15. Citing case authority from other circuits, petitioner argues he may demonstrate his
actual innocence of murder by showing that he lacked the requisite mens rea, a showing he alleges
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he might have succeeded in making if his attorney had had him psychologically evaluated, as such
an evaluation would have enabled him to prove that he suffered from PTSD and did not kill his
victim with premeditation
The Court overrules petitioner’s objection. The relevant case authority solidly
supports the magistrate judge’s view that in this circuit a habeas petitioner may not show his “actual
innocence” under Schlup by presenting new evidence that might have led a jury to convict him of
a lesser offense. In Harvey v. Jones, 179 F. App’x 294, 298 (6th Cir. 2006), the Sixth Circuit found
that petitioner could not avail himself of Schlup’s actual innocence exception because his challenge
was based on allegedly defective jury instructions, not “new reliable evidence, such as exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence,” and that he
therefore was claiming, at most, “legal innocence,” not “actual innocence.”

Harvey cited

approvingly the Tenth Circuit’s statement in Beavers v. Saffle, 216 F.3d 918, 923 (10th Cir. 2000),
that the petitioner in that case did not show actual innocence by admitting to killing his victim but
“claim[ing] he is not guilty of first degree murder because he was intoxicated and acted in self
defense,” as “these arguments go to legal innocence, as opposed to factual innocence.” Further, this
Court, in Robinson v. Morrow, No. 08-cv-00235, 2015 WL 5773422, at *18 (M.D. Tenn. Sept. 30,
2015), cited extensive case authority for the proposition that “a petitioner does not establish actual
innocence by asserting that new evidence shows he is guilty only of a lesser degree of homicide.”
The Court agrees with the magistrate judge’s decision to follow Harvey, Beavers, and Robinson, and
the cases cited therein. Petitioner’s objections lack merit for this reason alone.
Even if the Court accepted petitioner’s argument that new evidence of his mental
condition could, in theory, be presented to show that he lacked the mens rea to commit first degree
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murder, the Court would find his offer of proof to be insufficient under Schlup. The crime of which
petitioner was convicted took place in September 2004. Petitioner was first diagnosed with PTSD
more than ten years later, in December 2014, by a prison psychologist. See Pet’r’s Mem. in Supp.
of Mot. to Am. Pet. (docket entry 18), Ex. B (PageID 2631). In February 2016, petitioner’s habeas
attorney had petitioner evaluated by an outside psychologist, Dr. Pamela Auble, who likewise
diagnosed PTSD. See Pet’r’s Mot. to Lift Stay (docket entry 29), Ex. B (PageID 2728). Based on
psychological testing, interviews with petitioner and petitioner’s mother, and her review of court
records, Dr. Auble opined that
from the evidence presented at trial, the three men were not trying to
kill him, they were not armed, and they did not shoot at Mr. Wolfe.
If this was the reality of the situation, then Mr. Wolfe’s post traumatic
stress disorder distorted his perception of what was happening on the
night of the offense into an attempt on his life. This is consistent with
the personality testing which showed Mr. Wolfe to be extremely
anxious, unable to cope with the unexpected, prone to believe that
others were going to harm him, and likely to lash out when he felt
threatened. Mr. Wolfe’s psychological state was dominated by his
severe post traumatic stress disorder, and he perceived that he was in
a scenario in which he was about to be killed. Thus, his actions at the
time were the result of his mental illness and were the product of
excitement and passion rather than being the product of reflection and
judgment.
Id., PageID 2729.
Neither the December 2014 report nor the February 2016 report constitutes “new
reliable evidence,” Schlup, 513 U.S. at 324, that “a constitutional violation has probably resulted in
the conviction of one who is actually innocent.” Murray, 477 U.S. at 496. The fact that petitioner
was diagnosed with PTSD in 2014 and 2016 does not show that he had this disorder when he shot
the victim in 2004, and one can only speculate as to petitioner’s mental condition at that time. The

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speculative nature of petitioner’s claim is further magnified given that he asserts that his PTSD
“stem[s] from the 1997 shooting,” Am. Pet. at 8 ¶ 1, i.e., an event that occurred seven years before
the killing of which he was convicted. Even assuming that petitioner suffered from PTSD in 2004,
and that he had been so diagnosed before his trial, he has not shown that “no reasonable juror would
have convicted him in the light of the new evidence.” Schlup, 513 U.S. at 327. The specific element
petitioner argues he could have cast doubt upon is premeditation, but the Court deems it highly
unlikely that jurors would have had any difficulty finding that the prosecutor proved this element
beyond a reasonable doubt, even if they had been presented with a psychological evaluation similar
to that of Dr. Auble’s. Prosecution witnesses testified that petitioner stood outside of a convenience
store, waiting for the victim, Hawkins, to come out. When Hawkins did so, petitioner shot him in
the leg and then “walked over to the victim, who was seated on the ground with his back against the
store glass, and shot him in the head.” State of Tenn. v. Wolfe, 2009 WL 1025871, at *2 (Tenn.
Crim. App. Sept. 28, 2009). Other prosecution witnesses testified that Hawkins, and the two other
men with him, were unarmed. Petitioner also shot at one of those two other men, Moore, when
Moore came out of the store and turned to speak with petitioner. After petitioner was finished
shooting, having fired as many as six shots in all, he got into a car with his girlfriend, who testified
that petitioner “threw the gun out the window and that he never said anything about what happened.”
Id.
Under these circumstances, it is highly unlikely that jurors would have found that the
killing in this case was not premeditated – even if evidence had been introduced at trial to show that
petitioner suffered from PTSD – in light of the prosecution evidence that the killing was committed
with a deadly weapon, that the killing was unprovoked, that petitioner shot the unarmed victim in
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the head after incapacitating him with a shot to the leg, and that petitioner behaved calmly
afterwards. See State v. Gann, 251 S.W.3d 446, 455 (Tenn. Crim. App. 2007) (noting that
premeditation is “an act done after the exercise of reflection and judgment” and listing “the use of
a deadly weapon upon an unarmed victim; the particular cruelty of the killing; declarations by the
defendant of an intent to kill; evidence of procurement of a weapon; preparations before the killing
for concealment of the crime; and calmness immediately after the killing” among the circumstances
that may prove it).
For these reasons, the Court agrees with the magistrate judge in concluding that
petitioner has failed to demonstrate his actual innocence of the charge of which he was convicted.
For the same reasons, petitioner’s trial counsel was not ineffective for failing to refer petitioner for
a psychological evaluation before trial. Under Strickland v. Washington, 466 U.S. 668 (1984), a trial
attorney is not required to advance nonmeritorious defenses. Accordingly,

IT IS ORDERED that petitioner’s objections are overruled.

IT IS FURTHER ORDERED that Magistrate Judge Holmes’ R&R is hereby accepted
and adopted as the findings and conclusions of the Court.

IT IS FURTHER ORDERED that petitioner’s application for a writ of habeas corpus
is denied.

IT IS FURTHER ORDERED that petitioner may not proceed on appeal in forma
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pauperis because no appeal in this matter could be taken in good faith. See 28 U.S.C. § 1915(a)(3).

IT IS FURTHER ORDERED that no certificate of appealability shall issue because
petitioner has not made a substantial showing that his constitutional rights were violated when his
trial attorney failed to have him psychologically evaluated. See 28 U.S.C. § 2253(c)(2).

s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
SITTING BY SPECIAL DESIGNATION
Dated: March 18, 2019
Detroit, Michigan

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