Vaughn v. Donahue
Filing
70
OPINION AND ORDER: The Court DENIES WITH PREJUDICE Vaughn's petition for a writ of habeas corpus ( 1 ); DENIES Vaughn's motion to expand the record ( 25 -1); DENIES Vaughn a certificate of Appealability; and GRANTS Vaughn permission to appeal in forma pauperis. Signed by District Judge Matthew F. Leitman on 8/6/18. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
TWAIN D. VAUGHN #401689,
Petitioner,
v.
GRADY PERRY,
Respondent.
)
)
)
)
) Case No. 16-cv-02598
)
) Hon. Matthew F. Leitman
)
)
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS (ECF #1), (2) DENYING PETITIONER’S MOTION TO
EXPAND THE RECORD (ECF #25-1), (3) DENYING A CERTIFICATE OF
APPEALABILITY, AND (4) GRANTING PERMISSION TO APPEAL IN
FORMA PAUPERIS
Petitioner Twain D. Vaughn is a state prisoner in the custody of the Tennessee
Department of Correction. On September 26, 2016, Vaughn filed a petition for a
writ of habeas in this Court pursuant to 28 U.S.C. § 2254. (See ECF #1.) In the
petition, Vaughn challenges his state-court convictions of reckless homicide, firstdegree felony murder, aggravated robbery, and attempted aggravated robbery. (See
id.) The trial court sentenced Vaughn to a life sentence with the possibility of parole.
(See id. at 2; ECF #10-16 at 1.)
The Court has reviewed Vaughn’s petition and concludes that he is not entitled
to federal habeas relief. Accordingly, the Court will DENY his petition and DENY
1
his motion to expand the record. The Court will also DENY Vaughn a certificate of
appealability. But it will GRANT him permission to appeal in forma pauperis.
I
On December 14, 2005, a Davidson County jury convicted Vaughn of one
count each of reckless homicide, first-degree felony murder, and aggravated
robbery, and two counts of attempted aggravated robbery. (See ECF #20-1 at 49–
54.) The Tennessee Court of Criminal Appeals summarized the evidence at trial as
follows:
The Defendant’s convictions were the result of a shooting
in Nashville. Four individuals were driving towards
downtown Nashville when they stopped in the parking lot
of a vacant building, and, as they waited in the car, four
young men approached the car. Two of the young men and
three of the passengers all testified at trial that the
Defendant then attempted to rob the passengers and that
he shot and killed one of the passengers. Specifically, the
following evidence was presented at trial:
Kandice Regina Smith testified she lived in North
Carolina, and she came to Nashville in July 2004 to see
her brother, Kris Carlyle, the victim, along with her
mother, Kathy Smith, and her boyfriend, Paul Puckett. The
night of July 7, 2004, the four of them drove around the
city “sightseeing” in Smith’s mother’s two-door Chrysler
Lebaron. Smith’s mother drove, Carlyle sat in the front
passenger seat, Smith sat behind her mother, and Puckett
sat behind Carlyle.
Smith testified they found themselves lost, and they
stopped because four young black men walked into the
2
road. Carlyle rolled down his window to attempt to ask for
directions, and the young men instructed them to pull off
the road. They pulled the car into the parking lot of a
vacant restaurant, and three of the young men walked up
to the car. Smith testified that, suddenly, the fourth man
“c[a]me out of nowhere and put a gun in the car and
demanded our money.” Carlyle gave the man ten dollars.
Smith described the gun as a dark revolver. Smith stated,
“Then he pointed the gun at my boyfriend and asked him
for his money and he told him he didn't have any. Then he
pointed the gun at me and asked me for my money and I
told him I didn't have any, and then he turned back and
pointed the gun at my brother and shot him” once in the
neck. The other three young men did not participate in the
robbery or say anything to the passengers.
The car sped away, and the group eventually found a
hospital. The police arrived at the hospital where they
discussed the situation. Later that night, the passengers
and the police returned to the location of the shooting to
search for evidence. Two days later, Smith met with
Detective Coleman, who presented her with a photo
lineup. She identified the Defendant as the shooter from
the pictures. Smith testified that none of the other three
young men appeared to have a weapon.
On cross-examination, Smith explained that they arrived
at the vacant lot because they turned off the main road in
order to ask directions. They first met Detective Coleman
at the hospital, they took him to the crime scene, and they
then went to the station to be interviewed. Smith admitted
that the shooter may have been wearing red, and, when
pressed about the shooter’s hair style, Smith stated, “you
could braid it[—]it looked like, it just wasn't done.”
Additionally, Smith told Detective Coleman there
appeared to be a young man with “cornrows” who first
approached the car.
3
Paul Nelson Puckett, Jr., testified to the same background
information as Smith. Specifically, he stated they were
driving on a “fairly big road” towards downtown
Nashville. As they were driving, there were “[j]ust four
people, just, basically, making their way across the road,
and we had to basically either stop or run over them.”
Carlyle was going to ask for directions, but the young men
motioned for the car to pull off the road. Puckett described
everything as happening very quickly. There were four
young black men, and three of the young men walked up
to Carlyle’s side of the car. Then, the fourth man walked
up and “put [ ] a gun through the window and demand[ed]
some money.” Carlyle gave the man ten dollars. After
getting money from Carlyle, the man demanded money
from Puckett and Smith, and he then turned and shot
Carlyle.
They sped off and ultimately found someone to lead them
to a hospital. Carlyle did not talk during the short trip to
the hospital. Later, Puckett met with Detective Coleman
and reviewed photographs of individuals in a line-up
format. Puckett picked out two individuals, one being the
Defendant and the other an unassociated individual. In
court, Puckett identified the Defendant as the shooter.
On cross-examination, Puckett explained he could not
remember if he told Detective Coleman that the Defendant
was the shooter when he was interviewed. After reviewing
a tape of the interview outside the presence of the jury,
Puckett admitted that he did not positively identify the
Defendant as the shooter during the initial interview. In
further describing the shooter, Puckett stated that the
shooter wore red, had “cornrows,” was the tallest, and
looked the oldest. On redirect-examination, Puckett stated
that the Defendant's hair was different in court than when
he first identified the Defendant.
4
Kathy Smith, the victim’s mother, testified that Carlyle
was an aspiring singer/songwriter living in the Nashville
metropolitan area when he was killed. On the night in
question, the group was driving downtown so Carlyle
could sing and play his guitar. Kathy Smith stated that they
found themselves lost and saw a “perfect opportunity to
stop and ask for directions” when they saw four young
men in the road. Carlyle rolled down his window when the
young men motioned the car to pull off the road to get out
of traffic. Three of the young men approached the car and
then the fourth man approached. The first three did not
appear to be armed, but the fourth man pointed a revolver
at Carlyle and demanded money. Carlyle gave the man ten
dollars, but the other occupants of the car did not have any
money. He then pointed the gun at Carlyle and shot once.
Kathy Smith testified that she could not identify the
shooter because she could not see his face from where she
was sitting.
Kathy Smith testified that they asked Carlyle if he had
been hit, and, when he turned, blood “gushed” from his
mouth; he could not speak. They found someone to lead
them to the hospital, but Kathy Smith believed her son
died during the car ride to the hospital.
On cross-examination, Kathy Smith testified that she did
not recall telling an officer at the hospital that the three
young men approached the car with “small plastic bags.”
She stated that they were traveling downtown for Carlyle
to play his guitar on the corner for money. She also again
admitted that she could not identify the shooter.
DeEarl Huddleston testified that he was seventeen years
old and was familiar with the First Avenue and Lafayette
Street area in Nashville. Huddleston stated that, on July 7,
2004, he was in that area with three friends, Ja Marable,
Ta Marable, and the Defendant. They were walking from
Lafayette Street to their neighborhood when they saw the
5
automobile in which the victim was riding. Huddleston
testified that they were about to cross the street when the
individuals “stopped and asked if we had any drugs to sell
them.” Huddleston did not recall specifically which person
asked for the drugs, but Huddleston asked them, “what
kind of drugs?” They said they did not care, and, because
Huddleston had marijuana, the car pulled into the Mr.
Burger vacant parking lot. The individuals in the car
purchased marijuana from one of the other individuals, Ja
Marable, and Huddleston moved to walk away from the
transaction.
Huddleston testified that he heard the Defendant say “set
it out,” a phrase that is commonly used in the context of a
robbery. He then heard the Defendant fire a shot into the
car. The four young men then ran from the scene.
Huddleston testified that the gun was a black .38 Special
and that neither he nor Ja Marable or Ta Marable had a
weapon. They were not aware that the Defendant was
going to rob and shoot the passengers in the car.
Huddleston further testified that Rosalyn Blakely is his
aunt, his mother's sister. Huddleston stated that, after the
shooting, he went home and discussed the situation with
his mother and Blakely. They took Huddleston to
Detective Coleman the next day, and Huddleston gave the
detective the name “Ty” because he did not know the
Defendant's real name.
On cross-examination, Huddleston admitted that he
previously testified that the Defendant was wearing a
black shirt. Huddleston also admitted that he was selling
drugs that night, and his mother made him go to the police.
Huddleston stated that he had convictions in juvenile court
of theft and attempted theft. When questioned about their
relative heights, Huddleston stated that he was the tallest,
Ta Marable the second tallest, then the Defendant, and Ja
Marable the shortest. Huddleston admitted that he had
6
been friends with the Marable brothers for some time, and
after the shooting the three of them again met up that night
to “hang out.”
Officer Claude W. Mann testified that he was “working
radar” at Fourth and Lafayatte in Nashville when he
stopped a truck. As he was talking to the individuals in the
truck, a woman, Rosalyn Blakely, who Officer Mann
knew from working the area, yelled at him. Blakely said
that she wanted to tell him about something that had been
worrying her: she had information about the shooting of
the victim in this case. Officer Mann called for a detective,
Todd Watson, who arrived and talked with Blakely.
Jacarlvis (“Ja”) Marable testified that he was thirteen years
old. He stated that he was with his brother, Ta, DeEarl
Huddleston, and the Defendant the night of July 7, 2004.
They were proceeding home when they crossed Lafayette
Avenue. A car stopped because the four of them were in
the road, and someone from the car yelled at them to move.
Someone from the car also asked the young men whether
they had drugs, and the car then pulled into the Mr. Burger
parking lot. Huddleston and the Defendant first
approached the car, but Ja Marable and Ta Marable did not
immediately approach the car because their cousin, Neecy
Marable, called to them. The route to Neecy Marable’s
house took them past the car stopped at the Mr. Burger.
They stopped briefly at the car and saw Huddleston hand
the passengers marijuana.
Ja Marable then testified that he saw the Defendant pull
out a gun, and he heard Huddleston say, “give me
everything.” Marable said, “the car tried to pull off, and
the gunshot went off, I don’t know if the car hit the gun
and made the gunshot go off or he pulled the trigger or
whatever, I don't know, it was either one.” Marable stated
that he knew he and his brother did not have a weapon, but
he did not know whether Huddleston had one. After the
7
shooting, Marable and his brother went one direction and
Huddleston and the Defendant went another. Marable
testified he spoke with Detective Coleman the next day.
At that time, he was shown a picture line-up, and Marable
identified the Defendant as the shooter.
On cross-examination, Marable testified that the
Defendant was wearing a black shirt. Marable's brother,
Ta, had his hair half braided, half out, because “he was
taking it down.” Marable affirmed that he did not sell any
drugs and that Huddleston was part of the robbery.
Detective Hugh Coleman testified that he was first
contacted about a shooting around midnight on July 7,
2004. He responded to Centennial Hospital where he
found the victim already deceased. He interviewed the
other passengers in the early morning hours of July 8, and
then, accompanied by Paul Puckett and Kandice Smith, he
found the crime scene. The next day, July 9, 2004, a patrol
officer was flagged down and told of a witness, DeEarl
Huddleston. After interviewing Huddleston, they
interviewed Ja Marable who identified the Defendant from
a picture line-up. Next, Candace Smith also identified the
Defendant from a photo line-up. Paul Puckett was shown
a line-up, and he identified two possible individuals, one
being the Defendant. Kathy Smith was unable to identify
anyone.
Detective Coleman testified that the Defendant and his
parents arrived at the criminal justice center in order to
meet with him on July 9. The Defendant's mother
requested an attorney, so Detective Coleman did not
question him that night. Detective Coleman did talk with
the Defendant's mother about the process. At some point
in the discussion, Detective Coleman began to describe
what he had heard about the incident. Detective Coleman
stated that the car pulled up and asked, “Do you have
anything for me?” Detective Coleman testified that the
8
Defendant then sat up and excitedly said, “Yes, he did,
that’s what he said.”
Detective Coleman testified that he interviewed Ta
Marable on July 12 but that he ultimately determined that
none of the other three young men would be charged with
a crime. He believed that none of the three knew the
Defendant had a weapon or that they participated in the
robbery. Detective Coleman admitted that he did not
create a photo line-up with any of the other three young
men in it. Detective Coleman stated that the police never
recovered a weapon.
On cross-examination, Detective Coleman testified that
Paul Puckett told him, in his interview four hours after the
shooting, that the shooter was the tallest of the group and
wore a red shirt. Puckett also told Detective Coleman that
the shooter had braids and the gun was black with a brown
handle. Detective Coleman stated he did not prepare a
line-up with pictures of individuals with braids because he
did not have a picture of the Defendant in braids.
Additionally, he admitted he did not prepare a line-up for
the victim's family members with any of the other three
young men in it. Although he was not totally sure,
Detective Coleman agreed that Ja Marable was probably
the shortest, and Huddleston and Ta Marable were the
tallest of the group.
Detective Coleman testified that, during the course of the
investigation, he came across the name “Danesa Nelson”
as the person to whose house the Marable brothers went
after the shooting. Detective Coleman admitted he did not
attempt to locate or interview Nelson. Detective Coleman
testified that one could see the interstate from the Mr.
Burger parking lot. He admitted that there was no physical
evidence linking the Defendant to the shooting, and the
young men likely discussed the shooting at some point
after it occurred.
9
Dr. Staci Turner testified that she performed the autopsy
on the victim in this case. The victim died from a gunshot
wound that entered his neck and proceeded through his
chest cavity, a normally fatal wound. Based on the nature
of the wound, Dr. Turner stated that the gun was
approximately one to three feet away from the victim
when it was fired. Because Dr. Turner found blood in the
victim's lungs, she determined he lived a short time after
he was shot.
On cross-examination, Dr. Turner testified that it would be
possible for gunshot residue to get on the shooter. From
the angle of the entry wound, it appeared that the shooter
was standing when the shot was fired.
State v. Vaughn, 2008 WL 110094, at **1–5 (Tenn. Crim. App. Jan. 9, 2008).
At sentencing, the state trial court merged the reckless homicide and felony
murder convictions, and it sentenced Vaughn to life in prison with the possibility of
parole on that merged charge. (See ECF #20-1 at 49–50.) The trial court also ordered
that the sentences for Vaughn’s other convictions – which ranged from 4 years to 18
years – run concurrently with the life sentence for felony murder. (See id. at 51, 5354.)
Vaughn thereafter moved for a new trial, which the state trial court denied.
(See id. at 62-63.) Vaughn then appealed his conviction. Vaughn raised four claims
on appeal:
(1) the State committed a Brady violation, entitling him to
a new trial; (2) the trial court erred in refusing to admit
10
evidence of the victim's toxicology report; (3) the State
presented insufficient evidence to support the Defendant's
conviction for felony murder; and (4) the trial court erred
in refusing to grant a motion for judgment of acquittal as
to the first-degree premeditated murder charge.
Vaughn, 2008 WL 110094, at *1. Following “a thorough review of the record,” the
Tennessee Court of Criminal Appeals “affirm[ed] the judgments of the trial court.”
Id. The Tennessee Supreme Court denied discretionary review of Vaughn’s direct
appeal on June 2, 2008. (See ECF #20-13.)
After Vaughn exhausted his direct appeals, he filed a pro se petition for postconviction relief in the state trial court on April 7, 2009. (See ECF #20-14 at 29–33.)
On May 19, 2009, the trial court sua sponte dismissed the petition as untimely. The
trial court held that Vaughn’s petition did not comply with Tenn. Code Ann. § 4030-102(a), which requires post-conviction petitions to be filed “within one (1) year
of the date of the final action to [sic] the highest state appellate court to which an
appeal is taken or, if no appeal is taken, within one (1) year of the date on which the
judgment became final.” (Id. at 34–35 (quoting Tenn. Code Ann. § 40-30-102(a)).)
On March 24, 2010, citing a pro se motion to reconsider that does not appear in the
record, the trial court reversed its decision and announced that it was then “of the
opinion the original petitioner [sic] was timely filed.” (Id. at 36.) The trial court
appointed counsel for Vaughn and set the petition for a hearing. (See id.)
11
The State then filed a motion to dismiss the petition on the basis that it “was
plainly filed after the statute of limitation had expired.” (Id. at 42–43.) The court
held an evidentiary hearing on September 7, 2011, and took the matter under
advisement. (See id. at 47.) On August 26, 2014, the trial court denied relief on the
merits of Vaughn’s claims. (See id. at 48–60.) In the court’s order, it referred to its
previous reconsideration of the timeliness issue as “inexplicable” and said that it had
only considered the merits of Vaughn’s petition because of the confusion the court
had created by reversing its initial dismissal. (Id. at 60.) Neither the trial court’s
orders nor the State’s motion identified the operative dates on which they relied to
determine when the limitations period began or expired.
Vaughn appealed the denial of his petition for post-conviction relief, and both
parties briefed the merits of his issues on appeal. (See ECF ## 20-17, 20-18.) When
the Tennessee Court of Criminal Appeals resolved Vaughn’s appeal, it did not
address the merits of his claims. Instead, the appellate court incorrectly concluded
that Vaughn’s convictions had become final thirty days after they were affirmed on
January 9, 2008, and it therefore held that his petition was untimely.1 (See ECF #20-
1
The syllabus preceding the appellate court’s opinion incorrectly provides that
Vaughn did not seek discretionary review of the Tennessee Court of Criminal
Appeals’ January 9, 2008, decision in the Tennessee Supreme Court. This suggests
that, like the post-conviction trial court (and apparently the attorneys on both sides),
12
19 at 13-14.)
After Vaughn attempted, and failed, to have the Court of Criminal Appeals
recall its mandate to allow him to take a delayed appeal, he filed a pro se application
for discretionary review in the Tennessee Supreme Court on May 18, 2016. (See
ECF #20-20.) The Tennessee Supreme Court denied his application on August 18,
2016. (See ECF #20-22.)
II
Vaughn deposited his federal habeas petition in the prison mailroom for filing
on September 23, 2016. (See ECF #1-1.) Respondent acknowledges that the petition
is timely. (See ECF #21 at 2.) The petition is internally inconsistent and difficult to
follow, but it appears to assert five claims for relief:
1. The prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), when it
turned over key evidence two days before trial. (See ECF #1 at 5.)
2. The trial court wrongfully excluded evidence of the victim’s toxicology
report. (See id. at 6.)
3. The trial court wrongfully denied Vaughn’s motion for judgment of acquittal
on the charge of first-degree premeditated murder. (See id. at 8.)
the appellate court somehow was unaware of the Tennessee Supreme Court’s June
2, 2008, ultimate refusal to grant discretionary review.
13
4. Trial counsel was ineffective for failing to hire an expert on eyewitness
identification. (See id. at 9.)
5. Vaughn’s constitutional rights were violated by the use of juvenile/family
court records to convict him as an adult. (See id. at 5, 10.)
III
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
imposes the following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim –
(1)
resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2)
resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d)(1)-(2).
A decision of a state court is “contrary to” clearly established federal law if
the state court arrives at a conclusion opposite to that reached by the Supreme Court
on a question of law or if the state court decides a case differently than the Supreme
Court has on a set of materially indistinguishable facts. See Williams v. Taylor, 529
14
U.S. 362, 405-06 (2000). An “unreasonable application” of clearly established
federal law occurs when “a state court decision unreasonably applies the law of [the
Supreme Court] to the facts of a prisoner’s case.” Id. at 409. To obtain habeas relief,
a state prisoner must show that the state court’s rejection of his or her claim “was so
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Harrington,
Richter, 562 U.S. 86, 103 (2011).
IV
A
Vaughn first claims that the State violated his due process rights under Brady
v. Maryland, 373 U.S. 83 (1963), when it turned over key, potentially exculpatory
evidence, two days before trial. (See ECF #1 at 5.) Specifically, Vaughn insists that
the late disclosure of certain videotaped interviews with witnesses violated Brady’s
prohibition on suppressing “evidence favorable to the accused.” Brady, 373 U.S. at
87. In order to establish a Brady violation, a defendant must show that “[t]he
evidence at issue [was] favorable to the accused, either because it is exculpatory, or
because it is impeaching; that evidence [was] suppressed by the State, either
willfully or inadvertently; and [that the defendant suffered] prejudice.” Strickler v.
Greene, 527 U.S. 263, 281–82 (1999).
15
The Tennessee Court of Criminal Appeals reviewed this claim on direct
appeal and rejected it:
First, the Defendant asserts that the State committed a
Brady violation when it furnished the Defendant with six
videotaped interviews of witnesses two days before trial.
Under the United States Supreme Court decision of Brady
v. Maryland, 373 U.S. 83 (1963), a criminal defendant,
upon request, has a right to material evidence in the
possession of the State. Id. at 87. In order to establish a
violation of Brady, four requirements must be met:
1. The Defendant must have requested the
information (unless the evidence is obviously
exculpatory, in which case the State is bound to
release the information, whether requested or not);
2. The state must have suppressed the information;
3. The information must have been favorable to the
accused; and
4. The information must have been material.
State v. Biggs, 218 S.W.3d 643, 659 (Tenn. Crim. App.
2006); see State v. Edgin, 902 S.W.2d 387, 389 (Tenn.
1995).
“The defendant has the burden of proving a constitutional
violation by a preponderance of the evidence.” Biggs, 218
S.W.3d at 659 (citing State v. Spurlock, 874 S.W.2d 602,
610 (Tenn. Crim. App. 1993)). “Demonstrating a
constitutional violation requires the defendant to show that
without the omitted material he has been denied the right
to a fair trial.” Id. (citing United States v. Agurs, 427 U.S.
97, 108 (1976)). “In other words, the inquiry is whether
we can be confident that the jury's verdict would have been
16
the same if the state had disclosed the favorable evidence
to the defendant.” Id. (citing Kyles v. Whitley, 514 U.S.
419, 453 (1995).
The State asserts that it did not “suppress” the video tapes;
it merely delayed furnishing the Defendant with the tapes.
We agree with the State.
Tennessee courts analyze delayed disclosure differently
from outright suppression, focusing on the prejudice of the
delay. In United States v. Blood, the Sixth Circuit stated,
“Brady generally does not apply to delayed disclosure of
exculpatory information, but only to a complete failure to
disclose and that a [d]elay only violates Brady when the
delay itself causes prejudice.” 435 F.3d 612, 627 (6th Cir.
2006) (citing United States v. Bencs, 28 F.3d 555, 560–61
(6th Cir. 1994)) (quotations omitted); see State v.
Caughron, 855 S.W.2d 526, 548 (Tenn. 1993)
(Daughtrey, J., dissenting) (“‘no violation occurs as long
as Brady material is disclosed to a defendant in time for its
effective use at trial.’”) (quoting United States v. Smith
Grading & Paving, Inc., 760 F.2d 527, 532 (4th Cir. 1985)
(citing United States v. Higgs, 713 F.2d 39 (3d Cir.
1983))), cert. denied sub nom. Dellinger v. United States,
474 U.S. 1005 (1985); State v. Larry Boykin, No. E2005–
01582–CCA–R3–CD, 2007 WL 836807, at *13 (Tenn.
Crim. App., at Knoxville, Mar. 12, 2007).
In our view, the Defendant was furnished with the tapes in
time to use them effectively at trial. The tapes contained
statements concerning, among other things, what the
shooter was wearing, and this information was used to
cross-examine witnesses quite thoroughly. Additionally,
we note that the Defendant did not complain of the late
disclosure at trial. Relief will not be granted when the
Defendant failed to take the appropriate action at the trial
level. See Tenn. R. App. P. 36(a). The Defendant failed to
notify the trial court that he could not effectively proceed
17
with trial because of the late disclosure. The failure to
request a continuance constitutes waiver. The Defendant
is not entitled to relief on this issue.
Vaughn, 2008 WL 110094, at ** 6–7.
Vaughn has not shown that the Tennessee appellate court’s ruling was an
unreasonable application of clearly established federal law.2 Indeed, Vaughn has
not identified any Supreme Court decision that found a Brady violation under facts
similar to those here.
Moreover, and in any event, it was not unreasonable for the Tennessee
appellate court to conclude that Vaughn failed to show prejudice from the delayed
disclosure. To establish the required prejudice, “Brady requires a showing that there
is a reasonable probability that had the evidence been timely disclosed to the defense
the outcome would have been different.” United States v. Garner, 507 F.3d 399, 405
(6th Cir. 2007) (internal quotation marks omitted). Here, as the Tennessee appellate
2
Respondent argues that the state court’s finding that Vaughn had waived this claim
means that the claim is procedurally defaulted and not subject to habeas review. (See
ECF #21 at 22–23.) The Court disagrees. When a state court has ruled on a
petitioner’s claim in a decision that “fairly appear[s] to rest primarily on federal law
or to be interwoven with federal law,” federal habeas courts are to presume that the
ruling was on the merits of the claim unless the state court “clearly and expressly
rel[ied] on an independent and adequate state ground” to reject the claim. Coleman
v. Thompson, 501 U.S. 722, 735 (1991). Here, the state court devoted several
paragraphs to summarizing Vaughn’s claim, and identifying and applying a legal
standard to the merits of the claim, before “[a]dditionally . . . not[ing]” the issue of
waiver. Accordingly, the Court will review this claim as an exhausted claim subject
to the deference required by AEDPA.
18
court noted, despite the delayed disclosure of the witness interviews, Vaughn used
information from the taped statements “to cross-examine witnesses quite
thoroughly” at trial. Vaughn, 2008 WL 110094, at *7. And Vaughn has neither
shown that an earlier disclosure of the tapes would have changed the outcome of his
trial nor explained how his trial counsel could have made additional use of them if
they had been disclosed earlier. Indeed, in state court post-conviction proceedings,
Vaughn’s trial counsel acknowledged that while “it hurt to get the tapes [so] close
to trial,” she could not identify and did not know of any leads that she was unable to
follow or any beneficial evidence that she was unable to present because of the late
disclosure. (ECF #20-15 at 34-35, 61-62.) Vaughn’s counsel also testified that if
she had the opportunity to try the case again, she would not have done anything
differently. (See id. at 46-47.) Under these circumstances, it was not unreasonable
for the state appellate court to conclude that Vaughn had failed to establish prejudice
from the delayed disclosure. For all of these reasons, Vaughn is not entitled to relief
on this claim.
B
Vaughn next alleges that the trial court erred when it refused to admit evidence
of a toxicology report that showed the victim had drugs and alcohol in his system at
the time of his death. (See ECF #1 at 6.) The Tennessee Court of Criminal Appeals
19
reviewed this claim on direct appeal and rejected it:
Finally, the Defendant complains that the trial court erred
in refusing to allow him to present evidence of the victim’s
toxicology report that would show the victim had
marijuana, anti-depressants, and alcohol in his system at
the time of his death. The Defendant asserts that this
evidence would have shown the jury that the witnesses
from the car were untruthful in their testimony that they
were merely looking for directions, and that, therefore,
these witnesses may well have also been untruthful in
implicating the Defendant in these crimes.
Determinations made about the admissibility of evidence
rests within the sound discretion of the trial court and that
decision will not be disturbed absent a showing of an
abuse of discretion. State v. Robinson, 146 S.W.3d 469,
490 (Tenn. 2004); see State v. James, 81 S.W.3d 751, 760
(Tenn. 2002). We will not find an abuse of discretion
unless it appears that the trial court applied an incorrect
legal standard, or reached a decision which is against logic
or reasoning and caused an injustice to the party
complaining. See James, 81 S.W.3d at 760; State v. Shuck,
953 S.W.2d 662, 669 (Tenn. 1997).
The specific piece of evidence in issue, the toxicology
reports, the court determined to be propensity evidence.
See Tenn. R. Evid. 404(b). However, under State v.
Stevens, Rule 404(b) does not apply to the victim or
witnesses in this case. 78 S.W.3d 817, 836–37 (Tenn.
2002). The Stevens Court stated, “‘Evidence of crimes,
wrongs or acts, if relevant, [is] not excluded by Rule
404(b) if [the acts] were committed by a person other than
the accused.’” Id. at 837 (quoting State v. DuBose, 953
S.W.2d 649, 653 (Tenn. 1997)).
Thus, it would appear the only exclusionary rule that
applies here is Rule 403. Rule 403 states that relevant
20
“evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” It does not
appear that this rule would exclude the evidence sought to
be admitted in this case, thus, it was error to prevent the
admission of the testimony.
“Nevertheless, while the court erred in excluding this
testimony, we look at the effect of that error on the trial by
evaluating that error in light of all of the other proof
introduced at trial.” Stevens, 78 S.W.3d at 837 (citing State
v. Gilliland, 22 S.W.3d 266, 274 (Tenn. 2000)). “‘The
more the proof exceeds that which is necessary to support
a finding of guilt beyond a reasonable doubt, the less likely
it becomes that an error affirmatively affected the outcome
of the trial on its merits.’” Id. (quoting Gilliland, 22
S.W.3d at 274).
The Defendant was attempting to introduce a toxicology
report that would state the victim had marijuana in his
system at the time of his death. The victim’s use of
marijuana would make it more likely that the group was
actually purchasing marijuana from the four young men,
rather than seeking directions as the other car passengers
testified. The Defendant argues that this would impeach
the credibility of those witnesses, thereby calling into
question their testimony that the Defendant shot Carlyle.
We conclude this argument is too tenuous to have had any
affirmative affect at trial in the face of numerous
eyewitness statements linking the Defendant to the crime.
Thus, we conclude the error was harmless. See Spicer v.
State, 12 S.W.3d 438, 447–48 (Tenn. 2000) (“[T]he line
between harmless and prejudicial error is in direct
proportion to the degree ... by which proof exceeds the
standard required to convict....’ ”).
21
As we have found harmless error in excluding the
testimony, we need not address in depth the Defendant’s
due process claim that he was denied the right to present a
defense. See State v. Flood, 219 S.W.3d 307, 316–17
(Tenn. 2007); see also Chambers v. Mississippi, 410 U.S.
284, 294 (1973); State v. Brown, 29 S.W.3d 427, 431
(Tenn. 2000). In determining whether an exclusion of
evidence rises to the level of a constitutional violation, we
are directed to consider the following: (1) Whether the
excluded evidence is critical to the defense; (2) Whether
the evidence bears sufficient indicia of reliability; and (3)
Whether the interest supporting the exclusion of evidence
is sufficiently important. Flood, 219 S.W.3d at 317
(citations omitted). Harmless error requires a finding that
the error did not affect the outcome of the trial. Thus, by
nature, the evidence was not “critical to the defense.”
Additionally, Huddleston and Marable’s testimony that
the group was there to purchase drugs allowed the
Defendant to make the same argument. We conclude that
the evidence fails the Flood test, and his constitutional
right to present a defense was not violated.[3] The
Defendant is not entitled to relief on this issue.
Vaughn, 2008 WL 110094, at ** 9–10 (Tenn. Crim. App. Jan. 9, 2008).
The Tennessee appellate court’s ruling was not an unreasonable application
of clearly established federal law.4
The Supreme Court has repeatedly held that
3
In Flood, the Tennessee Supreme Court reviewed, among other things, whether the
defendant’s due process right to present a defense was violated under Chambers. See
Flood, 219 S.W.2d at 316, 315-16.
4
Respondent argues that this claim is not cognizable in a federal habeas action
because “Petitioner [has] simply renew[ed] his direct appellate argument centering
on state evidentiary law and fail[ed] to connect this claim to a violation of his federal
rights.” (ECF #21 at 23.) The Court disagrees. Respondent ignores the fact that
Vaughn’s primary argument in connection with this claim on direct appeal was that
22
“the Constitution guarantees criminal defendants ‘a meaningful opportunity to
present a complete defense.’” Nevada v. Jackson, 569 U.S. 505, 509 (2013) (quoting
Crane v. Kentucky, 476 U.S. 683, 690 (1986)). “But only rarely [has the Supreme
Court] held that the right to present a complete defense was violated by the exclusion
of defense evidence under a state rule of evidence.” Id. For example, in Chambers,
the Supreme Court found such a violation where the defendant had been prevented
from presenting evidence that was “critical” to his defense – specifically, testimony
about a third party’s repeated confessions to the murder for which the defendant was
on trial. Chambers, 410 U.S. at 302.
Here, it was not unreasonable for the state appellate court to conclude that the
toxicology report was not “critical” to Vaughn’s defense. Indeed, Vaughn did not
need the report to raise the defense that the victim and his companions were looking
to buy drugs on the night of the victim’s death, and Vaughn could and did provide
other evidence that supported that defense. As the state appellate court aptly pointed
out, because Vaughn was able to present “Huddleston and Marable’s testimony that
the [victim’s] group was there to purchase drugs,” Vaughn was able to “make the
the exclusion violated his constitutional right to present a complete defense as
recognized in Chambers v. Mississippi, 410 U.S. 284 (1973) (See ECF #20-9 at 20–
21), and that the Tennessee Court of Criminal Appeals expressly addressed the
federal Chambers claim in its decision, quoted in text above. The Court therefore
concludes that this claim is cognizable on federal habeas review.
23
same argument” that he would have made if the trial court had admitted the
toxicology report. Moreover, the state appellate court did not unreasonably conclude
that while the presence of drugs and alcohol in the victim’s system might have
further diminished the credibility of the victim’s companions, it had no likelihood of
changing the outcome of the trial in light of all of the eyewitness testimony against
Vaughn. Simply put, the jury could have seen and believed the toxicology report
and still concluded, based on the testimony of Vaughn’s own companions, that he
was the shooter.
For all of these reasons, Vaughn is not entitled to federal habeas relief on this
claim.
C
Vaughn next argues that the state trial court erred when it denied his motion
for judgment of acquittal on the charge of first-degree premeditated murder.5 (See
ECF #1 at 8.) The jury did not ultimately convict Vaughn of that charge. Instead,
5
The Court has been unable to locate either the motion or the trial court’s ruling in
the trial transcript, which appears to be incomplete. For example, the final volume
of trial transcript ends abruptly in mid-sentence of closing argument. (See ECF# 205 at 101.) Accordingly, the Court relies on Vaughn’s brief on direct appeal for the
fact that he sought a judgment of acquittal. Although the brief does not cite any
portion of the record for the motion (noting that the record would have to be
supplemented), the state’s response brief on direct appeal did not contest that fact or
assert that the issue had been waived. (See ECF #22-2 at 21.)
24
it found him guilty of the lesser included offense of reckless homicide, which the
trial court then merged with his conviction for first-degree felony murder. (See ECF
#20-1 at 49.)
Vaughn exhausted this claim on direct appeal, and the Tennessee Court of
Criminal Appeals rejected it:
The Defendant next contends that the trial court erred in
denying the Defendant’s motion for a judgment of
acquittal on the first-degree premeditated murder charge.
Premeditation is defined by statute as follows:
“[P]remeditation” is an act done after the exercise
of reflection and judgment. “Premeditation” means
that the intent to kill must have been formed prior
to the act itself. It is not necessary that the purpose
to kill pre-exist in the mind of the accused for any
definite period of time. The mental state of the
accused at the time the accused allegedly decided to
kill must be carefully considered in order to
determine whether the accused was sufficiently free
from excitement and passion as to be capable of
premeditation.
T.C.A. § 39–13–202(d). Although we are inclined to agree
that the State did not present evidence to support
premeditation, the Defendant was ultimately acquitted of
first-degree premeditated murder and convicted of felony
murder. Any error by the trial court is, therefore, harmless.
See Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a). The
Defendant is not entitled to relief on this issue.
Vaughn, 2008 WL 110094, at *9.
25
Vaughn has not presented any argument as to how the state appellate court’s
ruling was contrary to, or an unreasonable application of, clearly established federal
law, and he has not cited any Supreme Court precedent that would support such an
argument. Nor has he demonstrated that the state appellate court erred in concluding
that he was not prejudiced by the trial judge’s failure to acquit him for a crime for
which he was still ultimately acquitted. Vaughn is therefore not entitled to federal
habeas relief on this claim.
D
Vaughn next alleges that his trial counsel rendered ineffective assistance when
counsel failed to retain an expert on eyewitness identification. (See ECF #1 at 8.)
Respondent argues that Vaughn procedurally defaulted this claim when Vaughn
failed to raise it on appeal from the trial court’s denial of post-conviction relief. (See
ECF #21 at 25–26.)
However, because the underlying merits of Vaughn’s
ineffective assistance claim are easily resolved, the Court will consider them. See
28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied
on the merits, notwithstanding the failure of the applicant to exhaust the remedies
available in the courts of the State.”). See also Hudson v. Jones, 351 F.3d 212, 216
(6th Cir. 2003) (proceeding directly to merits analysis because “the question of
procedural default presents a complicated question . . . and is unnecessary to our
26
disposition of the case”).
Federal claims of ineffective assistance of counsel are subject to the
deferential two-prong standard of Strickland v. Washington, 466 U.S. 668 (1984).
Strickland asks: (1) whether counsel was deficient in representing the defendant; and
(2) whether counsel’s alleged deficiency prejudiced the defense so as to deprive the
defendant of a fair trial. See id. at 687. To meet the first prong, a petitioner must
establish that his attorney’s representation “fell below an objective standard of
reasonableness,” and must overcome the “strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that . . . the challenged action ‘might be
considered sound trial strategy.’” Id. at 688, 689. The “prejudice” component of a
Strickland claim “focuses on the question of whether counsel’s deficient
performance renders the result of the trial unreliable or the proceeding
fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). Prejudice,
under Strickland, requires showing that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694.
Vaughn has not satisfied either component described in Strickland. First, he
has not established that his trial counsel acted unreasonably when counsel failed to
27
retain an expert in eyewitness identification. Vaughn argues that he was identified
by a “white female that only had a very brief opportunity to view the shooter,” and
his defense could have benefited from an expert who “could have educated the jury
regarding the deficiencies regarding eyewitness identification, especially when the
eyewitnesses and subject are different races.” (ECF #1 at 9, incorporating ECF #2014 at 39.) But he ignores the fact that Huddleston and Marable – two people who
were personally acquainted with him and were with him the night of the murder –
also identified him and testified that he was the shooter. Whatever “deficiencies
regarding eyewitness identification” an expert might have attributed to the victim’s
companion would have no bearing on the fact that two people who knew Vaughn
testified that they saw and heard what he did that night. Therefore, it was not
unreasonable for counsel to conclude that there was no need for an expert in
eyewitness identification.
Second, for many of these same reasons, Vaughn has failed to establish that
he suffered prejudice from counsel’s decision not to hire an eyewitness identification
expert. Vaughn simply has not shown that, given all of the other evidence introduced
against him at trial – including the identification testimony from Huddleston and
Marable described above – there was a reasonable likelihood that expert eyewitness
identification testimony would have changed the outcome of his trial. Vaughn
28
therefore has failed to show that his counsel was ineffective under Strickland, and
he is not entitled to federal habeas relief on this claim.
E
Finally, although it is only obliquely presented in the petition, Vaughn has
devoted the bulk of his briefing to the claim that his convictions and sentences are
“void and illegal” because facts raised in his juvenile proceedings were used against
him at his criminal trial, and that trial counsel “defaulted” this issue. (See ECF #1 at
5, 10; ECF #68 at 3–12.) Vaughn acknowledges that his post-conviction counsel
failed to raise this issue. (See id. at 5.) The Court therefore construes this to be a
claim that Vaughn’s trial counsel was ineffective for failing to object to the improper
use of facts from Vaughn’s juvenile proceeding at trial.6
As with Vaughn’s
ineffective assistance claim analyzed in sub-paragraph D above, because this claim
is easily resolved, and the issue of procedural default is not, the Court will proceed
directly to the merits of Vaughn’s claim. See Hudson, 351 F.3d at 216; Ferensic v.
6
Respondent contends that Vaughn has presented a free-standing claim of
ineffective assistance by Vaughn’s post-conviction counsel. (See ECF #21 at 28.)
The Court disagrees. Vaughn’s reply brief confirms the Court’s construction that
this claim relates to his trial counsel’s ineffectiveness: “Petitioner’s post conviction
counsel failed to raise the issue of trial counsel’s constitutionally ineffective
representation in her failure to object to the use of inadmissible evidence [from
juvenile proceedings] at time of the Petitioner’s trial.” (ECF #68 at 11; emphasis
added.)
29
Birkett, 451 F.Supp.2d 874, 887 (E.D. Mich. 2006) (performing de novo review of
unexhausted habeas claim because “it is easier to address the merits of Petitioner’s
claim than to perform a procedural default analysis”).
Vaughn asserts that his trial counsel erred when counsel failed to object, at
Vaughn’s murder trial, to testimony by a witness who had earlier testified in
Vaughn’s juvenile proceedings. In order to fully understand this claim, some
background is required. Vaughn was 15-years-old at the time of the murder, so he
originally appeared in juvenile court before being transferred to criminal court. (See
ECF #20-15 at 8, 16–17, 20.) The juvenile court held two hearings on Vaughn’s
case, a detention hearing and a transfer hearing. Ja Marable testified at both
hearings. (See ECF #20-15 at 18.) Based in part on the testimony of Ja Marable, the
juvenile court found that there was sufficient probable cause to transfer Vaughn to
the criminal court. During Vaughn’s criminal trial, Ja Marable testified again and
told the same version of events that he offered in his testimony during Vaughn’s
juvenile proceedings.
Vaughn now insists that his trial counsel should have objected when Ja
Marable offered the same testimony at Vaughn’s criminal trial that he had earlier
offered at Vaughn’s juvenile proceedings. Vaughn claims that the introduction of
this evidence violated a Tennessee juvenile proceedings statute, which the Court
30
quotes in its entirety for context:
37-1-133. Order of adjudication – Noncriminal.
(a) An order of disposition or other adjudication in a
proceeding under this part is not a conviction of crime and
does not impose any civil disability ordinarily resulting
from a conviction or operate to disqualify the child in any
state service or civil service application or appointment. A
child shall not be committed or transferred to a penal
institution or other facility used primarily for the execution
of sentences of persons convicted of a crime, except as
provided in § 37-1-134.
(b) The disposition of a child and evidence adduced in a
hearing in juvenile court may not be used against such
child in any proceeding in any court other than a juvenile
court, whether before or after reaching majority, except in
dispositional proceedings after conviction of a felony for
the purposes of a pre-sentence investigation and report.
(c) A child found to be delinquent shall be exempt from
the operation of laws applicable to infamous crimes, and
such child shall not be rendered infamous by the judgment
of the juvenile court in which such child is tried.
The Court is not persuaded that Vaughn’s trial counsel was ineffective when
counsel failed to object to Ja Marable’s testimony at Vaughn’s criminal trial based
on this statute.
Vaughn has cited no Tennessee (or other) authority for the
proposition that the statute bars a witness who testified at a juvenile proceeding from
offering the same testimony at a later criminal proceeding. Indeed, Tennessee state
courts appear to have recognized that there can and will be overlap between the facts
31
introduced at these two proceedings. See, e.g., State v. Sexton, 2002 WL 1787946,
at *6 (Tenn. Crim. App. Aug. 2, 2002) (“The evidence presented at the transfer
hearing pertaining to the shooting of the victim and the Defendant’s involvement in
the crime was similar to the evidence later presented at trial.”). Moreover, when Ja
Marable testified at Vaughn’s criminal trial, he was not providing evidence that was
“adduced” at the juvenile proceeding; he was providing new evidence though the
admission of new testimony. Simply put, Vaughn has not convinced the Court that
the statute barred the testimony at issue here nor that Vaughn’s trial counsel was
ineffective for failing to object to Ja Marable’s trial testimony on this basis.
For the same reasons, there is no purpose served by expanding the record in
this case to include Vaughn’s juvenile court transcripts to “compar[e] this
testimonial evidence from the juvenile hearings and the testimonial evidence from
the Petitioner’s trial.” (ECF #68 at 10.) Accordingly, Vaughn’s motion to expand
the record (ECF #25-1) will be denied, and Vaughn is not entitled to federal habeas
relief on this claim.
As Vaughn has failed to demonstrate entitlement to federal habeas relief with
respect to any of his claims, the Court will deny the petition.
32
V
In order to appeal the Court’s decision, Vaughn must obtain a certificate of
appealability. To obtain a certificate of appealability, a prisoner must make a
substantial showing of the denial of a constitutional right. See 28 U.S.C. §
2253(c)(2). To demonstrate this denial, the applicant is required to show that
reasonable jurists could debate whether the petition should have been resolved in a
different manner, or that the issues presented were adequate to deserve
encouragement to proceed further. See Slack v. McDaniel, 529 U.S. 473, 483-84
(2000). A federal district court may grant or deny a certificate of appealability when
the court issues a ruling on the habeas petition. See Castro v. United States, 310 F.3d
900, 901 (6th Cir. 2002).
Here, jurists of reason would not debate the Court’s conclusion that Vaughn
has failed to demonstrate entitlement to habeas relief with respect to any of his
claims because they are all devoid of merit. Therefore a certificate of appealability
will be denied.
Although this Court declines to issue Vaughn a certificate of appealability,
the standard for granting an application for leave to proceed in forma pauperis on
appeal is not as strict as the standard for certificates of appealability. See Foster v.
Ludwick, 208 F.Supp.2d 750, 764 (E.D. Mich. 2002). While a certificate of
33
appealability may only be granted if a petitioner makes a substantial showing of the
denial of a constitutional right, a court may grant in forma pauperis status if it finds
that an appeal is being taken in good faith. See id. at 764-65; 28 U.S.C. § 1915(a)(3);
Fed. R.App.24 (a). Although jurists of reason would not debate this Court’s
resolution of Vaughn’s claims, an appeal could be taken in good faith. Therefore,
Vaughn may proceed in forma pauperis on appeal.
VI
Accordingly, for the reasons stated above, the Court 1) DENIES WITH
PREJUDICE Vaughn’s petition for a writ of habeas corpus (ECF #1), 2) DENIES
Vaugn’s motion to expand the record (ECF #25-1), 3) DENIES Vaugn a certificate
of appealability, and 4) GRANTS Vaughn permission to appeal in forma pauperis.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
SITTING BY SPECIAL DESIGNATION
Dated: August 6, 2018
34
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