Watts v. Leibach
Filing
22
MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 9/12/2019. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
CHRISTOPHER EARL WATTS #369452,
Petitioner,
v.
BLAIR LEIBACH,
Respondent.
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No. 3:17-cv-00795
JUDGE TRAUGER
MEMORANDUM OPINION
Petitioner Christopher Earl Watts, a state prisoner incarcerated in the Trousdale Turner
Correctional Center in Hartsville, Tennessee, has filed a petition for the writ of habeas corpus
under 28 U.S.C. § 2254 and has paid the filing fee. The court will grant the petition in part and
deny it in part for the reasons explained below.
I.
FACTS AND PROCEDURAL HISTORY
The Tennessee Court of Criminal Appeals cogently summarized the evidence at trial
when it reviewed the petitioner’s post-conviction appeal:
[I]n April 2007, the petitioner was in a romantic relationship with Lakeisha
Watkins. State v. Christopher Earl Watts, No. M2009-02570-CCA-R3-CD, 2012
WL 1591730, at *5 (Tenn. Crim. App. May 3, 2012). The petitioner lived with
Ms. Watkins and the victim, Ms. Watkins’ then fifteen-month-old child, in an
apartment rented by Ms. Watkins. Id. The petitioner periodically babysat for the
victim. Id. at *10.
On April 16, 2007, the petitioner babysat the victim while Ms. Watkins went to
the dentist. Id. at *5. According to a statement later given by the petitioner to the
police and played for the jury at trial, while babysitting, the petitioner brought the
victim with him while he took the trash outside to the dumpsters. Id. The victim
let go of the petitioner’s finger, began running, and fell down a nearby hill. Id.
The victim injured his lip, and a knot eventually appeared on his head. Id. The
petitioner denied there were bruises on the victim’s face. Id. The fall occurred
around 11:00 a.m., but the petitioner and Ms. Watkins waited until 7:00 p.m. to
take the victim to the hospital. Id.
Dr. Lawrence Stack, an emergency medicine physician at Vanderbilt Hospital,
and a resident examined the victim on April 16, 2007. Id. at *6. The petitioner
identified himself to the doctors as the victim’s stepfather and said the victim fell
“‘flat on his face’” while he and the victim were walking down the hill to take out
the trash. Id. The petitioner further reported that after falling, the victim slept for
most of the day. Id. Dr. Stack noted the victim was fussy, unresponsive to
attempts to open his eyes, and had multiple bruises on his forehead, face, upper
arms, and shoulders. Id. Dr. Stack diagnosed the victim with a concussion and
admitted him to the hospital so the Care Team, a consultation service responsible
for evaluating children suspected of being abused, could evaluate his bruises and
home environment. Id. at *6–7.
After being discharged from the hospital, the victim lived with Ms. Watkins’
father for approximately three weeks. Id. at *3. The victim subsequently lived
with Ms. Watkins’ mother for another three weeks. Id. at *4. Eventually, Ms.
Watkins asked if the victim could return to her home. Id. at *11. After a site visit
from a case worker during which Ms. Watkins lied and said she was no longer in
a relationship with the petitioner, the victim began living with Ms. Watkins and
the petitioner again. Id.1
The petitioner and Ms. Watkins continued to reside together in June 2007. Id. at
*5. According to the petitioner’s statement, the morning of June 13, 2007, the
victim had a seizure while the petitioner changed his diaper. Id. at *5. It was hot
in the apartment, so the petitioner thought the victim was having a heat stroke. Id.
The petitioner put the victim in front of a fan, and the victim “‘snapped out of it.’”
Id.
Nicole Riley, the petitioner’s cousin, testified that on the afternoon of June 13,
2007, the petitioner brought the victim to a birthday party at her house. Id. at *7.
The victim “‘just stood there’” and did not move, talk, or play. Id. Ms. Watkins
later arrived, and the victim began to cry. Id.
According the petitioner’s statement and Ms. Watkins’ trial testimony, somebody
named Michael spent the night in the apartment on June 14, 2007. Id. at *5, *12.
The petitioner did not think Michael hurt the victim. Id. at *5. Ms. Watkins
testified that Michael never had contact with the victim. Id. at *12.
The petitioner further indicated in his statement that on the morning of June 15,
2007, he woke up to find the victim had gotten out of his playpen, gone
downstairs, and was “leaning on the couch.” Id. at *5. At some point, the victim
began screaming, and Ms. Watkins gave him Tylenol. Id. Later that day, Ms.
Watkins fed the victim and exited the apartment, leaving the petitioner alone with
the victim. Id. Shortly thereafter, the petitioner noticed the victim’s lips were blue,
and he appeared lifeless. Id. The petitioner ran outside and called for help. Id. The
petitioner, who did not know how to perform cardio pulmonary resuscitation
(“CPR”), blew into the victim’s mouth and “‘pressed’” on the victim. Id. A
1
Actually, it appears from the trial transcript that the case worker was informed approximately
one week before her May 29 site visit that the victim was again living with his mother. (Doc. No.
13-5 at 60, 62–63.)
2
female neighbor then performed CPR on the victim, and he began to breathe. Id.
Ms. Watkins offered a slightly different version of the events occurring June 15,
2007. Id. at *11. According to Ms. Watkins’ trial testimony, around 9:00 a.m., she
heard the victim screaming and got out of bed to check on him. Id. The petitioner
was holding the victim and told Ms. Watkins that he found the child downstairs,
“‘asleep standing up.’” Id. About five minutes later, the victim had a seizure that
lasted five to ten minutes. Id. The petitioner did not want to call an ambulance, so
she gave the victim Tylenol and let him sleep. Id. The victim remained weak and
sleepy for the remainder of the day. Id.
Around 9:45 p.m., Ms. Watkins left the apartment to get something to eat while
the petitioner watched the victim. Id. When she left, the victim appeared to be
breathing normally. Id. When she returned about five minutes later, the victim
was not breathing. Id. One neighbor performed CPR, while another called 911. Id.
Dr. Sandra Moutsios, a pediatrician and internist at Vanderbilt Hospital, testified
at trial as an expert in pediatric medicine and child abuse. Id. at *7. According to
Dr. Moutsios, after coming to the emergency room on June 15, 2007, the victim
was treated for continuous seizures, stabilized, and admitted to the hospital. Id.
Dr. Moutsios was part of the Care Team to subsequently evaluate the victim. Id.
Dr. Moutsios testified extensively about the injuries sustained by the victim and
indicated “‘it was his mental status that was most concerning.’” Id. Dr. Moutsios
opined the victim sustained multiple injuries to his brain, one of which was acute
and occurred within a couple days of June 15, 2007. Id. at *9. The other brain
injuries were older. Id.
Because the brain injuries were different ages, they were not the result of a single
fall down the stairs. Id. at *9–10. According to Dr. Moutsios, had Ms. Watkins
and the petitioner sought medical treatment for the victim prior to the seizure
occurring June 15, 2007, the later seizure may have been prevented. Id. at *9.
In addition to brain injuries, the Care Team discovered that the victim suffered a
fracture to his left arm bone near the wrist. Id. at *8. Dr. Moutsios described the
fracture as a “‘buckle fracture’” meaning “‘there was some force that caused the
outside layer of the bone to actually buckle.’” Id. Significant force would have
caused the fracture and could have been the result of a “‘twisting mechanism.’”
The fracture had started to heal, and Dr. Moutsios estimated the victim’s arm was
broken one to two weeks before he was brought to the hospital on June 15, 2007.
Id.
At the petitioner’s trial, the State made reference to Ms. Watkins living in the
“projects” and Mr. Watkins living “on the streets” in its opening statement.2 Trial
2
The petitioner’s claim during post-conviction proceedings and in his pending habeas petition is
that there were references at trial to Ms. Watkins’ living in the “projects” and his, Mr. Watts’,
living “on the streets.” (Doc. No. 1 at 8; Doc. No. 13-24 at 5.) This reference to a “Mr. Watkins”
living “on the streets” is presumably a typographical error meant to refer to Mr. Watts. Later in
3
counsel did not object. The State then called the following witnesses as part of its
case-in-chief: Janell Driver, a paramedic with the Nashville Fire Department;
Bryan Jones, a paramedic with the Nashville Fire Department; Falonda Tolston, a
case manager for Child Protective Services; Detective Woodrow Ledford of the
Metropolitan Nashville Police Department (“MNPD”); John Watkins, Lakeisha
Watkins’ father; Pamela Watkins, Lakeisha Watkins’ mother; Detective Faye
Okert of the MNPD; Dr. Lawrence Stack, an ER physician at Vanderbilt Hospital;
Jessica Mitchell, Ms. Watkins’ next door neighbor; Nicole Riley, the petitioner’s
cousin; Latoya Starks, a neighbor of Ms. Watkins; Dr. Sandra Moutsios, a
pediatrician and internist at Vanderbilt Hospital; and Ms. Watkins. Id. at *1–12.
In addition, the State played the petitioner’s videotaped statement to police, and a
video of the victim seizing. Id. at *5. The State then rested. Id. at *13.
The State made the following election of offenses at the close of its proof:
Count 1, the [petitioner] committed aggravated child abuse on or
about April 16, 2007, by causing severe head injuries to the victim,
including a concussion, inability to open eyes, and multiple facial
bruises; count 2, the [petitioner] committed child neglect by failing
to seek timely medical treatment for head injuries the victim
sustained on April 16, 2007; count 3, the [petitioner] committed
aggravated child abuse on or about June 15, 2007, by causing
severe head injuries to the victim, including anoxic brain damage,
acute subdural and subarachnoid hemorrhages, retinal
hemorrhages, and severe seizures; count 4, the appellant
committed aggravated child neglect by neglecting the victim’s
welfare and failing to seek timely medical treatment for seizures
the victim experienced on the morning of June 15, 2007, and his
“decreased physical abilities throughout that day;” count 5, the
appellant committed aggravated child neglect by neglecting the
victim’s welfare and failing to seek timely medical treatment for
the seizures the victim experience on or about Wednesday, June
13, 2007; count 6, the appellant committed aggravated child abuse
by causing a subdural hematoma and other brain trauma to the
victim between May 29 and June 15, 2007; and count 7, the
appellant committed aggravated child abuse by causing a fracture
to the victim’s left ulna between May 29 and June 15, 2007.
Id. at *7.
The petitioner declined to put on proof. Outside the presence of the jury, the trial
court held a Momon hearing, where the petitioner confirmed his decision to waive
his right to testify was voluntary.
(Doc. No. 13-26 at 2–5.)
this same opinion, the Tennessee Court of Criminal Appeals discusses “the facts that Ms.
Watkins lived in the ‘projects’ and the petitioner lived ‘on the streets.’” (Doc. No. 13-26 at 5.)
4
On September 3, 2009, the jury convicted the petitioner on all seven counts: aggravated
child abuse, count 1, offense date April 16, 2007; child neglect, count 2, offense date April 16,
2007; aggravated child abuse, count 3, offense date June 15, 2007; aggravated child neglect,
count 4, offense date June 15, 2007; aggravated child neglect, count 5, offense date June 13 to
June 14, 2007; aggravated child abuse, count 6, offense date May 29 to June 15, 2007; and
aggravated child abuse, count 7, offense date May 29 to June 15, 2007. (Doc. No. 13-1 at 105–
11.) The trial court sentenced the petitioner to 25 years in prison for each of the aggravated child
abuse convictions in Counts 1, 3, and 6. (Id.) It merged Count 2 with Count 1 and ordered the
sentences for all the other convictions to run concurrently with one of the 25-year sentences, for
a total effective sentence of 75 years. (Id.)
On direct appeal, the Tennessee Court of Criminal Appeals reversed the petitioner’s
convictions on counts 2, 5, and 7, finding that there was insufficient evidence to support them.
(Doc. No. 13-16.) The court affirmed in all other respects in its opinion dated May 3, 2012. (Id.)
The Tennessee Supreme Court denied permission to appeal on September 20, 2012. (Doc. No.
13-19.)
The petitioner filed a pro se petition for post-conviction relief in the trial court on June
18, 2013. (Doc. No. 13-20 at 53.) The court appointed counsel, who took no action in the case
and was replaced by substitute counsel on January 14, 2015. (Id. at 64, 67.) The petitioner’s new
attorney filed an amended post-conviction petition on February 27, 2015. (Id. at 70.) The court
held a hearing on the petition on April 22, 2015 (id. at 80) and denied relief on January 11, 2016.
(Id. at 81–104.) The Tennessee Court of Criminal Appeals affirmed on January 27, 2017 (Doc.
No. 13-26), and the petitioner did not seek discretionary review from the Tennessee Supreme
Court.
5
The petitioner’s petition for writ of habeas corpus pursuant to Section 2254 is deemed
filed in this court on April 28, 2017 (Doc. No. 1 at 9), and the respondent acknowledges that it is
timely. (Doc. No. 21 at 2.)
II.
ISSUES PRESENTED FOR REVIEW
The petition raises the following claims for relief:
1. There is insufficient evidence to support the petitioner’s convictions for aggravated
child abuse in counts 1, 3, and 6. (Doc. No. 1 at 4.)
2. The trial court erred by not severing the charged offenses for trial. (Doc. No. 1 at 6.)
3. The trial court erred by instructing the jury that the petitioner’s co-defendant was an
accomplice. (Doc. No. 1 at 6.)
4. The petitioner’s sentence is excessive and was based on facts not found by the jury in
violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). (Doc. No. 1 at 7.)
5. Trial counsel was ineffective for failing to provide adequate information and advice
about waiving the right to testify at trial. (Doc. No. 1 at 7.)
6. Trial counsel was ineffective for failing to call certain witnesses. (Doc. No. 1 at 8.)
7. Trial counsel was ineffective for failing to file a motion in limine to exclude evidence
about “living in the projects and on the streets.” (Doc. No. 1 at 8.)
8. Cumulative effect of trial counsel’s ineffectiveness warrants a new trial. (Doc. No. 1
at 8.)
III.
STANDARD OF REVIEW
The statutory authority of federal courts to issue habeas corpus relief for persons in state
custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). A federal court may grant habeas relief to a state prisoner “only
on the ground that he is in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). Upon finding a constitutional error on habeas corpus
review, a federal court may only grant relief if it finds that the error “had substantial and
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injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S.
619, 637 (1993); Peterson v. Warren, 311 F. App’x 798, 803–04 (6th Cir. 2009).
AEDPA was enacted “to reduce delays in the execution of state and federal criminal
sentences, particularly in capital cases . . . and ‘to further the principles of comity, finality, and
federalism.’” Woodford v. Garceau, 538 U.S. 202, 206 (2003) (quoting Williams v. Taylor, 529
U.S. 362, 436 (2000)). AEDPA’s requirements “create an independent, high standard to be met
before a federal court may issue a writ of habeas corpus to set aside state-court rulings.” Uttecht
v. Brown, 551 U.S. 1, 10 (2007) (citations omitted). As the Supreme Court has explained,
AEDPA’s requirements reflect “the view that habeas corpus is a ‘guard against extreme
malfunctions in the state criminal justice systems,’ not a substitute for ordinary error correction
through appeal.” Harrington v. Richter, 562 U.S. 86, 102–03 (2011) (quoting Jackson v.
Virginia, 443 U.S. 307, 332 n.5 (1979)). Where state courts have ruled on a claim, AEDPA
imposes “a substantially higher threshold” for obtaining relief than a de novo review of whether
the state court’s determination was incorrect. Schriro v. Landrigan, 550 U.S. 465, 473 (2007)
(citing Williams, 529 U.S. at 410).
Specifically, a federal court may not grant habeas relief on a claim rejected on the merits
in state court unless the state decision was “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United States,” or
“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) and (d)(2). A state court’s legal decision is
“contrary to” clearly established federal law under Section 2254(d)(1) “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
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indistinguishable facts.” Williams, 529 U.S. at 412–13. An “unreasonable application” occurs
when “the state court identifies the correct legal principle from [the Supreme] Court’s decisions
but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. A state
court decision is not unreasonable under this standard simply because the federal court finds it
erroneous or incorrect. Id. at 411. Rather, the federal court must determine that the state court’s
decision applies federal law in an objectively unreasonable manner. Id. at 410–12.
Similarly, a district court on habeas review may not find a state court factual
determination to be unreasonable under Section 2254(d)(2) simply because it disagrees with the
determination; the determination must be “‘objectively unreasonable’ in light of the evidence
presented in the state court proceedings.” Young v. Hofbauer, 52 F. App’x 234, 236 (6th Cir.
2002). “A state court decision involves ‘an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding’ only if it is shown that the state court’s
presumptively correct factual findings are rebutted by ‘clear and convincing evidence’ and do
not have support in the record.” Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007) (quoting
§ 2254(d)(2) and (e)(1)); but see McMullan v. Booker, 761 F.3d 662, 670 & n.3 (6th Cir. 2014)
(observing that the Supreme Court has not clarified the relationship between (d)(2) and (e)(1)
and the panel did not read Matthews to take a clear position on a circuit split about whether clear
and convincing rebutting evidence is required for a petitioner to survive (d)(2)). Moreover,
under Section 2254(d)(2), “it is not enough for the petitioner to show some unreasonable
determination of fact; rather, the petitioner must show that the resulting state court decision was
‘based on’ that unreasonable determination.” Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011).
Thus the standard set forth in 28 U.S.C. § 2254(d) for granting relief on a claim rejected on the
merits by a state court “is a ‘difficult to meet’ and ‘highly deferential standard for evaluating
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state-court rulings, which demands that state-court decisions be given the benefit of the doubt.’”
Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Richter, 562 U.S. at 102, and Woodford
v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). Petitioner carries the burden of proof. Id.
Even that demanding review, however, is ordinarily only available to state inmates who
have fully exhausted their remedies in the state court system. Title 28 U.S.C. §§ 2254(b) and (c)
provide that a federal court may not grant a writ of habeas corpus on behalf of a state prisoner
unless, with certain exceptions, the prisoner has presented the same claim sought to be redressed
in a federal habeas court to the state courts. Pinholster, 563 U.S. at 182. This rule has been
interpreted by the Supreme Court as one of total exhaustion. Rose v. Lundy, 455 U.S. 509 (1982).
Thus, each and every claim set forth in the federal habeas corpus petition must have been
presented to the state appellate court. Picard v. Connor, 404 U.S. 270 (1971); see also Pillette v.
Foltz, 824 F.2d 494, 496 (6th Cir. 1987) (explaining that exhaustion “generally entails fairly
presenting the legal and factual substance of every claim to all levels of state court review”).
Moreover, the substance of the claim must have been presented as a federal constitutional claim.
Gray v. Netherland, 518 U.S. 152, 162–63 (1996).
The procedural default doctrine is ancillary to the exhaustion requirement. See Edwards
v. Carpenter, 529 U.S. 446 (2000) (noting the interplay between the exhaustion rule and the
procedural default doctrine). If the state court decides a claim on an independent and adequate
state ground, such as a procedural rule prohibiting the state court from reaching the merits of the
constitutional claim, a petitioner ordinarily is barred from seeking federal habeas review.
Wainwright v. Sykes, 433 U.S. 72, 81–82 (1977); see also Walker v. Martin, 562 U.S. 307, 315
(2011) (“A federal habeas court will not review a claim rejected by a state court if the decision of
the state court rests on a state law ground that is independent of the federal question and
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adequate to support the judgment.”); Coleman v. Thompson, 501 U.S. 722 (1991) (same). If a
claim has never been presented to the state courts, but a state court remedy is no longer available
(e.g., when an applicable statute of limitations bars a claim), then the claim is technically
exhausted, but procedurally barred. Coleman, 501 U.S. at 731–32.
If a claim is procedurally defaulted, “federal habeas review of the claim is barred unless
the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to consider the claims will result in
fundamental miscarriage of justice.” Id. at 750. The burden of showing cause and prejudice to
excuse defaulted claims is on the habeas petitioner. Lucas v. O’Dea, 179 F.3d 412, 418 (6th Cir.
1999) (citing Coleman, 501 U.S. at 754). “‘[C]ause’ under the cause and prejudice test must be
something external to the petitioner, something that cannot fairly be attributed to him [;] . . .
some objective factor external to the defense [that] impeded . . . efforts to comply with the
State’s procedural rule.” Coleman, 501 U.S. at 753 (emphasis in original). Examples of cause
include the unavailability of the factual or legal basis for a claim or interference by officials that
makes compliance “impracticable.” Id. To establish prejudice, a petitioner must demonstrate
that the constitutional error “worked to his actual and substantial disadvantage.” Perkins v.
LeCureux, 58 F.3d 214, 219 (6th Cir. 1995) (quoting United States v. Frady, 456 U.S. 152, 170
(1982)); see also Ambrose v. Booker, 684 F.3d 638, 649 (6th Cir. 2012) (finding that “having
shown cause, petitioners must show actual prejudice to excuse their default”).
“When a
petitioner fails to establish cause to excuse a procedural default, a court does not need to address
the issue of prejudice.” Simpson v. Jones, 238 F.3d 399, 409 (6th Cir. 2000). Likewise, if a
petitioner cannot establish prejudice, the question of cause is immaterial.
Because the cause and prejudice standard is not a perfect safeguard against fundamental
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miscarriages of justice, the United States Supreme Court has recognized a narrow exception to
the cause requirement where a constitutional violation has “probably resulted” in the conviction
of one who is “actually innocent” of the substantive offense. Dretke v. Haley, 541 U.S. 386, 392
(2004) (citing Murray v. Carrier, 477 U.S. 478, 495–96 (1986)); accord Lundgren v. Mitchell,
440 F.3d 754, 764 (6th Cir. 2006).
IV.
ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
The petitioner alleges in Claim 1 that there was insufficient evidence of serious bodily
injury to support his convictions for aggravated child abuse in Counts 1 and 6 and insufficient
evidence that he committed the offense underlying the aggravated child abuse conviction in
Count 3. (Doc. No. 1 at 4–5.) He challenged the sufficiency of the evidence for all of his
convictions on direct appeal. As pertinent to the current claim, the Tennessee Court of Criminal
Appeals found as follows:
The appellant argues that the evidence is insufficient to support the convictions.
When an appellant challenges the sufficiency of the convicting evidence, the
standard for review by an appellate court is “whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e). The State is
entitled to the strongest legitimate view of the evidence and all reasonable or
legitimate inferences which may be drawn therefrom. See State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses
and the weight and value to be afforded the evidence, as well as all factual issues
raised by the evidence, are resolved by the trier of fact. See State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or reevaluate the
evidence, nor will this court substitute its inferences drawn from the
circumstantial evidence for those inferences drawn by the jury. See id. Because a
jury conviction removes the presumption of innocence with which a defendant is
initially cloaked at trial and replaces it on appeal with one of guilt, a convicted
defendant has the burden of demonstrating to this court that the evidence is
insufficient. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
A guilty verdict can be based upon direct evidence, circumstantial evidence, or a
11
combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121,
140 (Tenn. 1998). “The jury decides the weight to be given to circumstantial
evidence, and ‘[t]he inferences to be drawn from such evidence, and the extent to
which the circumstances are consistent with guilt and inconsistent with innocence,
are questions primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn.
2006) (quoting State v. Marable, 313 S.W.2d 451, 457 (Tenn. 1958)). “The
standard of review ‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).
1. Aggravated Child Abuse - Counts 1, 3, 6, . . .
The appellant contends that the evidence is insufficient to support his aggravated
child abuse convictions. A defendant is guilty of aggravated child abuse when the
defendant commits the offense of child abuse and the conduct results in serious
bodily injury to the child. Tenn. Code Ann. § 39-15-402(a)(1). Child abuse occurs
when a person “knowingly, other than by accidental means, treats a child under
eighteen (18) years of age in such a manner as to inflict injury.” Tenn. Code Ann.
§ 39-15-401(a). “A person acts knowingly with respect to a result of the person’s
conduct when the person is aware that the conduct is reasonably certain to cause
the result.” Tenn. Code Ann. § 39-11-302(b). Bodily injury “includes a cut,
abrasion, bruise, burn or disfigurement, and physical pain or temporary illness or
impairment of the function of a bodily member, organ, or mental faculty[.]” Tenn.
Code Ann. § 39-11-106(a)(2). At the time of the appellant’s trial, serious bodily
injury was defined as bodily injury that involved
(A) a substantial risk of death;
(B) Protracted unconsciousness;
(C) Extreme physical pain;
(D) Protracted or obvious disfigurement; or
(E) Protracted loss or substantial impairment of a function of a bodily
member, organ or mental faculty.
Tenn. Code Ann. § 39-11-106(a)(34)(A)–(E). FN3
FN3 We note that in July 2009, two months before the appellant’s
trial, our state code was amended to define “serious bodily injury
to the child” in Tennessee Code Annotated Section 39-15-402(d)
as
includ[ing], but . . . not limited to, second-or thirddegree burns, a fracture of any bone, a concussion,
subdural or subarachnoid bleeding, retinal
hemorrhage, cerebral edema, brain contusion,
injuries to the skin that involve severe bruising or
the likelihood of permanent or protracted
disfigurement, including those sustained by
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whipping children with objects.
Moreover, “[a] broken bone of a child who is eight (8) years of age
or less” was added to the list for serious bodily injury in Tennessee
Code Annotated section 39-11-106(a)(34).
The trial court instructed the jury on criminal responsibility. A defendant is
criminally responsible for an offense committed by another if, “[a]cting with
intent to promote or assist the commission of the offense, or to benefit in the
proceeds or results of the offense, the [defendant] solicits, directs, aids, or
attempts to aid another person to commit the offense.” Tenn. Code Ann. § 39-11402(2). “‘[U]nder the theory of criminal responsibility, presence and
companionship with the perpetrator of a felony before and after the commission
of the crime are circumstances from which an individual’s participation may be
inferred.’” State v. Dorantes, 331 S.W.3d 370, 386 (Tenn. 2011) (quoting State v.
Phillips, 76 S.W.3d 1, 9 (Tenn. Crim. App. 2001)). In addition, “no specific act or
deed need be demonstrated.” Id. (citing State v. Ball, 973 S.W.2d 288, 293 (Tenn.
Crim. App. 1998)). A defendant also is criminally responsible for an offense
committed by another if,
[h]aving a duty imposed by law or voluntarily undertaken to
prevent commission of the offense and acting with intent to benefit
in the proceeds or results of the offense, or to promote or assist its
commission, the person fails to take a reasonable effort to prevent
commission of the offense.
A step-parent and caretaker has a duty to protect a child from harm and provide
the child with emergency attention. State v. Hodges, 7 S.W.3d 609, 623 (Tenn.
Crim. App. 1998).
For count 1, the State alleged that the appellant committed aggravated child abuse
on or about April 16, 2007, by causing severe head injuries to the victim,
including a concussion, inability to open his eyes, and multiple facial bruises. The
appellant asserts that the evidence is insufficient to support the conviction because
it failed to establish that the victim suffered serious bodily injury. The evidence
shows that the victim’s eyes were swollen shut, that he had numerous bruises and
abrasions on his face and upper body, and that he had knots on his head. He also
had a concussion, which Dr. Stack explained was a disruption in brain function,
and would not open his eyes. In our view, such injuries, particularly in a
seventeen-month-old child, qualify as serious bodily injury. Therefore, the
evidence is sufficient to support the conviction.
For count 3, the State alleged that the appellant committed aggravated child abuse
on or about June 15, 2007, by causing severe head injuries to the victim, including
anoxic brain damage, acute subdural and subarachnoid hemorrhages, retinal
hemorrhages, and severe seizures. The appellant asserts that the evidence is
insufficient to support the conviction because the evidence is entirely
circumstantial and indicates the victim’s mother caused the injuries. Dr.
Moutsious testified that the victim had bleeds in his brain and that one of the
13
bleeds occurred within a couple of days of June 15. Although Dr. Moutsious
could not say precisely when the bleed occurred, she was concerned that the
victim had sustained a brain injury within minutes of the time he stopped
breathing. The evidence demonstrated that the appellant and Watkins were the
victim’s sole caregivers in the days leading up to the victim’s June
hospitalization. Watkins told the police that she allowed the appellant to discipline
the victim, that he took the victim into a room and shut the door, and that she
heard thuds in the room. Moreover, the evidence showed that the appellant was
alone with the victim just before the victim experienced the seizure that caused
him to stop breathing. Therefore, the evidence is sufficient to show that the
appellant caused the anoxic brain damage, acute subdural and subarachnoid
hemorrhages, retinal hemorrhages, and severe seizures that the victim suffered on
or about June 15.
For count 6, the State alleged that the appellant committed aggravated child abuse
by causing a subdural hematoma and other brain trauma to the victim between
May 29 and June 15, 2007. The appellant argues that the evidence is insufficient
to support the conviction because (1) the State failed to show that the victim
suffered a subdural hematoma and brain trauma other than the subdural hematoma
and brain trauma related to count 3, (2) the State failed to show that the victim
suffered serious bodily injury, and (3) the evidence does not ensure juror
unanimity. Dr. Moutsious testified that the victim suffered multiple brain injuries
that were caused by significant force. She said that while one of the victim’s brain
bleeds occurred within a couple of days of June 15, other bleeds were older than
two weeks. In her opinion, the victim had a brain injury before the Wednesday,
June 13, seizure. As stated above, Watkins and the appellant were the victim’s
sole caregivers, and Watkins testified that the appellant pushed the victim and
“would thump” the victim when the appellant disciplined the victim. Also, in her
statement to police Watkins said that she heard thuds when the appellant
disciplined the victim. Therefore, the evidence is sufficient to show that the
appellant caused prior brain trauma to the victim, which resulted in older brain
bleeds. Moreover, we are unpersuaded by the appellant’s claim that the victim did
not suffer serious bodily injury. Bleeding in the brain, particularly bleeding that
causes a seizure such as the one the victim experienced on Wednesday, June 13,
involves substantial impairment of a function of a bodily organ. The evidence is
sufficient to support the conviction for aggravated child abuse in count 6.
(Doc. No. 13-16 at 19–23.)
The respondent asserts that this ruling was reasonable. (Doc. No. 21 at 18.) Petitioner
contends that it was “contrary to or involved an unreasonable application of clearly established
federal law.” (Doc. No. 1 at 5.)
The right to due process guaranteed by the Constitution ensures that no person will be
14
made to suffer the onus of a criminal conviction except upon sufficient proof. The evidence is
sufficient if “after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). The state court
accurately identified this deferential standard and analyzed the evidence presented at trial in light
of it, so the question presented is whether its conclusions amounted to an unreasonable
application of the law or determination of the facts.
Analysis of an exhausted insufficient-evidence claim in the habeas context is doubly
deferential: “First, deference should be given to the trier-of-fact’s verdict, as contemplated by
Jackson; second, deference should be given to the [state court’s] consideration of the trier-offact’s verdict, as dictated by AEDPA.” Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008).
This review imposes a “standard . . . so demanding that ‘[a] defendant who challenges the
sufficiency of the evidence to sustain his conviction faces a nearly insurmountable hurdle.’”
Davis v. Lafler, 658 F.3d 525, 534 (6th Cir. 2011) (en banc) (quoting United States v. Oros, 578
F.3d 703, 710 (7th Cir. 2009)). Jurors have “broad discretion in deciding what inferences to
draw from the evidence,” and when there are “a number of plausible ways to interpret the
record,” the state court’s interpretation must not be disturbed by a habeas court as long as it is
among those plausible interpretations. Coleman v. Johnson, 566 U.S. 650, 655 (2012) (per
curiam); Renico v. Lett, 559 U.S. 766, 778 (2010). The Supreme Court has explained how
constrained a federal habeas court’s review in these circumstances is:
The opinion of the Court in Jackson v. Virginia, 443 U.S. 307 (1979), makes clear
that it is the responsibility of the jury—not the court—to decide what conclusions
should be drawn from evidence admitted at trial. A reviewing court may set aside
the jury’s verdict on the ground of insufficient evidence only if no rational trier of
fact could have agreed with the jury. What is more, a federal court may not
overturn a state court decision rejecting a sufficiency of the evidence challenge
15
simply because the federal court disagrees with the state court. The federal court
instead may do so only if the state court decision was “objectively unreasonable.”
Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation marks omitted).
Because rational people can sometimes disagree, the inevitable consequence of
this settled law is that judges will sometimes encounter convictions that they
believe to be mistaken, but that they must nonetheless uphold.
Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam).
Accordingly, a federal court reviewing the sufficiency of the evidence on habeas review
may not re-weigh evidence. Marshall v. Lonberger, 459 U.S. 422, 434, (1983). A reviewing
court “faced with a record of historical facts that supports conflicting inferences must presume—
even if it does not affirmatively appear on the record—that the trier of fact resolved any such
conflicts in favor of the prosecution, and must defer to that resolution.” Wright v. West, 505 U.S.
277, 296–97 (1992).
With regard to Count 1, the state appellate court reasonably concluded that there was
evidence supporting a finding that the victim suffered injuries on or about April 16, 2007, and
that those injuries constituted serious bodily injury. The petitioner does not explain why he
believes those findings to be unreasonable. He might be focused on the fact that a concussion
was not observable on the victim’s CT scan.
But Dr. Stack testified that evidence of a
concussion is not found in CT scans and that he diagnosed the victim with a concussion based on
clinical observations. (Doc. No. 13-6 at 33, 57.) Further, the finding that a concussion is a
serious injury is reasonable in light of Dr. Stack’s testimony that a concussion is an injury to the
brain resulting in “disruption of the brain function” and greater susceptibility to further injury.
(See Doc. No. 13-6 at 32–33.) Likewise, it is reasonable to conclude that the victim’s inability to
open his eyes and exhibiting “a lot of discomfort” when hospital staff tried to open his eyes
evidenced serious bodily injury as defined by Tennessee law. (See id. at 24.)
16
It is indisputable that the victim suffered serious bodily injuries on or about June 15 as
charged in Count 3, but the petitioner asserts that there is insufficient evidence to establish that
he inflicted those injuries. There is no direct evidence in the record about precisely when or how
those injuries were inflicted. As the state appellate court observed, however, there was evidence
that the petitioner was alone with the victim when the victim stopped breathing, and Dr.
Moutsios testified that the injury could have been inflicted within just a few minutes of that
event. In fact, she testified that injury within minutes is “oftentimes” the case “when we see
children present with such severe episodes of stopping breathing and seizure.” (Doc. No. 13-7 at
41.) There are more than one “plausible ways to interpret the record” in this case, Coleman, 566
U.S. at 655, but the petitioner’s inflicting serious bodily injury on the victim during those
moments alone just before the victim stopped breathing is certainly among them. Accordingly,
this court cannot conclude on habeas review that the state court’s conclusion was “objectively
unreasonable,” as required to grant relief on this claim. Cavazos, 565 U.S. at 2.
The petitioner also disputes that there is sufficient evidence of “a subdural hematoma and
other brain trauma” inflicted between May 29 and June 15, as charged in Count 6 and distinct
from the Count 3 injury that occurred on or about June 15. (See Doc. No. 13-9 at 9–10 (state’s
election of offenses).)
The victim was not hospitalized or evaluated by any medical
professionals during the 17-day time period in question. Dr. Moutsios testified that, in addition
to the acute bleeding in the victim’s brain visible on the MRI performed in the early morning of
June 16, there were indications on the MRI of “possible old subdurals” that were “older than two
weeks.” (Doc. No. 13-7 at 63.) She explained “[t]here’s not a way to confirm that.” (Id.) She
testified that she was concerned that a seizure the victim reportedly suffered on June 13 was a
“response[] to prior head injury” and that she believed he had suffered an injury to his brain
17
before that seizure (id. at 38), but there is no evidence connecting the June 13 seizure with
suspected subdural hematomas that were more than two weeks old just a few days after June 13.
The state elicited testimony from the victim’s mother that the petitioner was alone with the
victim for around five minutes on June 13 when the seizure occurred (Doc. No. 13-8 at 38–42),
but again, the “old subdurals” revealed by the MRI could not have been caused by any injury on
that date. Subdural hematomas more than two weeks old on June 16 must have been inflicted on
or before June 1. There are four days of overlap between the May 29 beginning of the period
charged in Count 6 and that date, but there is no evidence in the record about any incidents
involving the victim and the petitioner on those particular dates.
The state appellate court relied on information from the victim’s mother about the
petitioner’s mistreatment of the victim as evidence in support of the petitioner’s conviction on
Count 6. The mother, whom the prosecutor described in his closing argument as “not somebody
of high intellectual abilities” and “not somebody who can get from Point A to Point B to Point C
easily” (Doc. No. 13-9 at 13), either testified to or acknowledged having told the police the
following relevant facts:
“Whenever Mr. Watts would be inside the room with Christopher, he would push
him and he would thump him up beside the head and he pulled his shirt up over
his head one time that I had seen and let him run into the wall.” (Doc. No. 13-8 at
65.)
She once saw the petitioner push the victim, who “fell on his butt” and started
crying, but did not appear to be injured. (Id. at 65–66.)
“One time” she heard the victim fall and hit his head on the floor, but she did not
actually see or hear it, she “just assumed.” (Id. at 67.)
She falsely told police that she heard loud thumps coming from inside the
bedroom when the petitioner and the victim were in the bedroom. (Id. at 68.)
She saw the petitioner “thump” the victim one time, which she explained meant
flicking the victim with his fingers on the victim’s forehead. (Id. at 69–70.)
She falsely told police that she had heard the petitioner cause the victim to hit the
18
wall four times and the floor twice. (Id. at 98.)
The victim’s mother was not asked for and did not provide any time frames for any of those
events. The following exchange during re-direct examination by the prosecutor adequately
captures the tenor of her testimony:
Q.
So, I guess, the question then, Ms. Watkins, you admitted to the police that
sometimes—a lot of times, every day, basically, you would hit your son
with a belt, but you only caused bruises one time; right?
A.
Yes, I did.
Q.
So where did your son get all these other injuries, if it’s only you and Mr.
Watts that are caring for him?
A.
I’m assuming Mr. Watts.
Q.
Assuming. That’s the word you used with the police; right, assuming?
You told the police that you were assuming that Mr. Watts did these
things?
A.
Yes.
Q.
And then later, you told them that you actually witnessed him doing things
and heard things; right?
A.
Yes, I did.
Q.
So which is it, you’re assuming or you actually witnessed and heard?
A.
I witnessed some, but I—
Q.
What, specifically, did you witness that caused injuries to your son?
A.
Him pushing him, thumping him on the forehead, calling him a momma’s
boy, telling him to stop crying.
Q.
Well, you told us when he pushed your son down the one time, your son
landed on his butt and he didn’t get hurt from that; right?
A.
Yes, I did.
Q.
You told us that when he thumped your son, he didn’t get hurt, he just
cried; right?
A.
Yes.
Q.
So when did your son get all these other serious injuries?
A.
I guess whenever he was with Mr. Watts.
(Doc. No. 13-8 at 99–100.)
Again, the state’s election of offense for Count 6 was that the petitioner “committed
19
aggravated child abuse by causing a subdural hematoma and other brain trauma to the victim
between May 29 and June 15, 2007.” (Doc. No. 13-26 at 5 (emphasis added).) A subdural
hematoma is a specific medical condition, and aside from the acute hematomas supporting the
conviction on Count 3 for causing acute subdural and subarachnoid hemorrhages on or about
June 15, Dr. Moutsios testified that all of the other possible hematomas found on the victim’s
MRI on June 16 were more than two weeks old. To conclude that (1) the victim suffered a
subdural hematoma during the 4-day overlap between that time period and the time period
covered by Count 6, and (2) that subdural hematoma was the result of abuse, and (3) that abuse
was perpetrated by the petitioner—the only evidence of which is Ms. Watkins’s assumptions and
guesses3—requires more than just an interpretation of the evidence in this case to which this
court could defer. It requires rank speculation that is not supported by the evidence in the record.
A jury might arguably have made a reasonable inference that the petitioner inflicted some
injury on June 13 to cause the seizure the victim reportedly experienced that day, but there is
simply no evidence of a subdural hematoma inflicted on that day, as charged in Count 6. To the
contrary, Dr. Moutsios’s testimony was to the effect that the old hematomas were inflicted more
than 12 days before June 13. The Tennessee Court of Criminal Appeals’s apparent reliance on
the June 13 seizure and Ms. Watkins’s testimony to support the conviction on Count 6 was thus
objectively unreasonable. Accordingly, the petitioner is entitled to relief on this part of his
claim, and his conviction on Count 6 will be conditionally vacated.
B. FAILURE TO SEVER OFFENSES
The petitioner alleges that the trial court’s denial of his pre-trial motion to sever the trial
3
As discussed below in Section IV.C, Ms. Watkins was an accomplice to Count 6, and her
uncorroborated testimony could therefore not support a conviction on that count as a matter of
state law.
20
of Counts 1 and 2, relating to abuse and neglect in April 2007, from the other counts “violate[d]
Tennessee Rule of Criminal Procedure 13(b)” and “Rule 14(b)(1).” (Doc. No. 1 at 6.) He asserts
that he “suffered great prejudice” from the failure to sever the counts for trial, but he does not
identify any federal constitutional right that was violated by trying the offenses together. (Id.)
Similarly, all eight pages of the petitioner’s brief on direct appeal devoted to this issue focused
on Tennessee Rules of Criminal Procedure—particularly Rule 14(b)(1)—and state decisional law
construing them. (Doc. No. 13-14 at 35–43.)
The Tennessee Court of Criminal Appeals’
analysis of the claim likewise rested entirely on state law. (Doc. No. 13-16 at 15–17.)
Federal courts may grant the writ of habeas corpus only on the ground that the petitioner
is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a); Estelle v. McGuire, 502 U.S. 62 (1991). “[F]ederal habeas corpus relief does not lie
for errors of state law.” Estelle, 502 U.S. at 67 (quoting Lewis v. Jeffers, 497 U.S. 764, 780
(1990)).
“[I]t is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions.” Id. at 67–68. The petitioner’s claim that the trial court
violated state rules of criminal procedure is thus not cognizable for review under Section 2254.
Moreover, even if the current claim rested on some federal constitutional ground, it
would be deemed procedurally defaulted due to the failure to exhaust the federal claim in state
court. The Sixth Circuit has identified four factors relevant to whether a petitioner’s state court
pleadings have “fairly presented” a federal claim: (1) relying on federal cases employing
constitutional analysis, (2) relying on state cases employing federal constitutional analysis, (3)
phrasing the claim in terms of constitutional law, or (4) alleging facts well within the mainstream
of constitutional law. Pudelski v. Wilson, 576 F.3d 595, 606 (6th Cir. 2009) (citing McMeans v.
Brigano, 228 F.3d 674, 681 (6th Cir. 2000)). The petitioner has not satisfied any of those
21
factors. The petitioner did not cite the federal constitution or any federal cases construing it in
his state court brief. And one of the primary state cases on which he relied in state court makes
explicit the “non-constitutional” nature of the relevant analysis under state law: “Whether a trial
court should grant a severance under Tennessee Rule of Criminal Procedure 14(b)(1) involves
primarily an evidentiary question, therefore, ‘the effect of a denial of that right is weighed by the
same standard as other non-constitutional evidentiary errors[.]’” State v. Denton, 149 S.W.3d 1,
15 (Tenn. 2004).
Accordingly, the court concludes that this claim is not cognizable in federal habeas
review. Alternatively, the court concludes that any cognizable federal issue raised by this claim
is procedurally defaulted and not subject to federal review.
C. ACCOMPLICE INSTRUCTION
The petitioner alleges in this claim that “the trial court erred by instructing the jury that
Lakeisha Watikins [sic] was an accomplice as a matter of law because the instruction amounted
to a judicial comment on the evidence.” (Doc. No. 1 at 6.) He exhausted this claim on direct
appeal, where the state appellate court rejected it:
The appellant argues that the trial court erred by instructing the jury that Lakeisha
Watkins was an accomplice as a matter of law because the instruction amounted
to a judicial comment on the evidence. The State argues that the trial court
properly instructed the jury. We conclude that the appellant is not entitled to relief
on this issue.
At the conclusion of Watkins’ testimony, the trial court informed the parties that
“I have added about Lakeisha Watkins being an accomplice.” Defense counsel
answered, “Okay. Fine.” The trial court continued, “And I am instructing that she
is an accomplice and that her testimony would have to be corroborated.” Defense
counsel stated, “Fine.” During the jury charge, the trial court instructed the jury as
follows:
In this case, the Court charges you that the witness, Lakeisha
Watkins, was an accomplice in the alleged offenses, and before the
defendant can be convicted, you must find that this accomplice
testimony has been sufficiently corroborated.
22
An accomplice is a person who knowingly, voluntarily and with
common intent with a defendant, unites with him or her in the
commission of an offense.
After the trial court finished instructing the jury, defense counsel asked for a
bench conference. During the conference, counsel stated,
I apologize for not mentioning this earlier, but I ran into this. My
problem is with the first sentence of the accomplice charge here,
saying, the Court charges you that she was an accomplice. . . . The
Court doesn’t mean that. But it might infer to the Jurors that you’re
finding that she was an accomplice. I mean, as a matter of fact[.]
The trial court stated, “She is. I have to tell them. This is the law in this case. It’s
not whether they find her as an accomplice. She was.”
A defendant has a “constitutional right to a correct and complete charge of the
law.” State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). A charge resulting in
prejudicial error is one that fails to fairly submit the legal issues to the jury or
misleads the jury about the applicable law. State v. Hodges, 944 S.W.2d 346, 352
(Tenn. 1997).
An accomplice is someone who “knowingly, voluntarily, and with common intent
participates with the principal offender in the commission of the crime alleged in
the charging instrument.” State v. Griffis, 964 S.W.2d 577, 588 (Tenn. Crim. App.
1997). Generally, the question of a witness’s status as an accomplice is answered
by determining whether that person could have been indicted for the charged
offense. State v. Boxley, 76 S.W.3d 381, 386 (Tenn. Crim. App. 2001). If the facts
about the witness’s participation in the crime are clear and undisputed, the trial
court must declare the witness to be an accomplice as a matter of law and instruct
the jury that the accomplice’s testimony must be corroborated. State v. Eric
Ricardo Middleton, No. W2010–01427–CCA–R3–CD, 2011 Tenn. Crim. App.
LEXIS 833, *47, 2011 WL 5573730 (Tenn. Crim. App. Nov. 14, 2011) (citing
State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990)). However, if the
facts are disputed or subject to different inferences, the jury should determine as a
question of fact whether the witness was an accomplice. State v. Anderson, 985
S.W.2d 9, 16 (Tenn. Crim. App. 1997).
Initially, we note that the appellant failed to object when the trial court stated that
it was going to give the accomplice as a matter of law instruction and failed to
make a contemporaneous objection during the jury charge. See Tenn. R. App. P.
36(a). In any event, Watkins was indicted as a co-defendant in all but one of the
counts, and a jury found her guilty prior to the appellant’s trial. Therefore,
Watkins was an accomplice as a matter of law with regard to counts 2 through 7,
and the trial court properly instructed the jury. As to count 1, Watkins testified
that she was not present when the victim’s injuries occurred on April 16, and she
was not charged with causing his injuries. Therefore, she was not an accomplice
as a matter of law with regard to that count. However, as noted by the State, the
trial court’s instruction held the State to a higher burden, requiring the jury to find
23
that her testimony was corroborated. Therefore, the State has demonstrated that
any error regarding the trial court’s instruction was harmless. See Rodriguez, 254
S.W.3d at 371.
(Doc. No. 13-16 at 17–19.)
The respondent asserts that this claim is procedurally defaulted because the Tennessee
Court of Criminal Appeals found it was waived by the failure to lodge a timely objection to the
instruction in question. (Doc. No. 21 at 23.) The court disagrees. The state court “note[d],” as
an “initial” observation, that the petitioner had not objected before or during the jury instruction.
But it did not address whether the objection immediately after the instruction was sufficient to
preserve the issue or whether any other circumstances avoided application of the state’s waiver
rule. Instead, it proceeded to analyze the petitioner’s claim on the merits. When a claim has
been raised and addressed in state court, federal habeas review is only foreclosed when the
record demonstrates “unambiguous state-court reliance on a procedural default,” which is not
present in this case. Henderson v. Palmer, 730 F.3d 554, 561 (6th Cir. 2013) (quoting Bowling v.
Parker, 344 F.3d 487, 499 (6th Cir. 2003)). The state court’s use of the phrase “in any event”
before turning to its merits analysis is akin to another state court’s use of “notwithstanding,”
which the Sixth Circuit considered ambiguous:
The language used by the Kentucky Supreme Court in its opinion reveals that it
did not clearly rely on Bowling’s procedural default to dismiss the claims raised
in his supplemental motion. After noting that the claims were raised only in the
struck supplemental pleadings, the Kentucky Supreme Court went on to consider
the merits of those claims, stating, “Notwithstanding that his supplemental motion
was struck by the trial court, in the interest of judicial economy we will review the
seven additional claims of ineffective assistance of counsel raised in the motion.”
Bowling II, 981 S.W.2d at 551.
There are two reasonable interpretations to which this statement is susceptible.
The Kentucky Supreme Court may have been relying on the procedural default.
Its dismissal of Bowling’s claims on the merits would then be considered an
alternative holding. In such a situation, we would consider the claims in the struck
motion procedurally defaulted. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989)
24
(stating that “a state court need not fear reaching the merits of a federal claim in
an alternative holding”); Coe v. Bell, 161 F.3d 320, 330 (6th Cir. 1998). However,
the Kentucky Supreme Court may have well been using the word
“notwithstanding” to ignore the issue of possible procedural default and consider
the claims on the merits. In such a case, Bowling’s claims would not be defaulted
because the state court would not have been relying on the procedural bar in its
disposition of the case.
We find both interpretations eminently plausible. The use of the word
“notwithstanding” could suggest either that the Kentucky Supreme Court was
enforcing the procedural default or that it was waiving it. Moreover, the
possibility that the Kentucky Supreme Court was in fact waiving the default is
amplified by the fact that it went on to consider Bowling’s claims on the merits.
See Harris, 489 U.S. at 266 n.13 (noting that “[w]hile it perhaps could be argued
that this statement would have sufficed had the state court never reached the
federal claim,” the fact that “the state court clearly went on to reject the federal
claim on the merits” makes it less clear that the state court actually relied on the
procedural bar). Ultimately, the fact that both interpretations are sensible settles
this issue in Bowling’s favor, for there must be unambiguous state-court reliance
on a procedural default for it to block our review. See Gall v. Parker, 231 F.3d
265, 321 (6th Cir. 2000), cert. denied, 533 U.S. 941 (2001).
Bowling v. Parker, 344 F.3d 487, 498–99 (6th Cir. 2003). Likewise, the ambiguity in the state
appellate court’s ruling on this claim settles the default issue in the petitioner’s failure, and the
court turns to the reasonableness of the state court’s merits ruling.
The petitioner asserts that the state court “erred” by giving this instruction, but he does
not explain whether or why he thinks the state appellate court’s ruling was unreasonable. (Doc.
No. 1 at 6.) Another district court in this state has very recently explained Tennessee’s law
regarding when a witness is deemed to be an accomplice:
“It is well-established in Tennessee that ‘a conviction may not be based solely
upon the uncorroborated testimony of an accomplice.’” Gibbs, 2013 WL
3324957, at *3 (quoting State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001)). A trial
court must pronounce a witness to be an accomplice as a matter of law where “the
evidence is clear and undisputed that [the] witness participated in the crime.” Id.
Where, “however, . . . the evidence is unclear, then the issue of whether a witness
is an accomplice is a question of fact for the jury to decide, and if the jury decides
that the witness is an accomplice, then it must determine whether there is
sufficient evidence corroborating the witness’s testimony.” Id. (citing State v.
Griffis, 964 S.W.2d 577, 588 (Tenn. Crim. App. 1997)).
25
Gibbs v. Crowell, No. 116CV01231STAJAY, 2019 WL 2719801, at *6 (W.D. Tenn. June 27,
2019).
The petitioner does not cite any law for the proposition that such an accomplice
instruction is unconstitutional. To the contrary, the Sixth Circuit has found on habeas review
that it is error to fail to instruct that a codefendant is an accomplice as a matter of law whose
testimony must be corroborated. Abdur’Rahman v. Carpenter, 805 F.3d 710, 716 (6th Cir. 2015)
(explaining that “Abdur’Rahman’s codefendant was an accomplice as a matter of law, so the trial
court should have instructed the jury that his testimony had to be corroborated,” and going on to
find any error harmless); accord Thompson v. Beck, 181 F. App’x 747, 750 (10th Cir. 2006)
(finding failure to instruct that a witness was an accomplice as a matter of law was harmless
error).
Accordingly, the petitioner’s argument that such instructions constitute “judicial
comment on the evidence” or are otherwise improper (see Doc. No. 1 at 6) is not supported by
any federal law.
The state court determined that the accomplice instruction was in error to the extent that
it applied to counts on which Ms. Watkins had not been indicted or convicted. But erroneous
jury instructions will only warrant federal habeas relief if they were “so infirm that they rendered
the entire trial fundamentally unfair.” Austin v. Bell, 126 F.3d 843, 846 (6th Cir. 1997). The state
court concluded that the petitioner was not prejudiced by any error in the accomplice instruction
given at his trial, and he has not demonstrated that conclusion to be contrary to or an
unreasonable application of any Supreme Court precedent. The petitioner is thus not entitled to
relief on this claim.
D. EXCESSIVE SENTENCE
The petitioner claims that his sentence is excessive for two reasons: (1) the trial court
erred by ordering his sentences to run consecutively; and (2) the trial court relied on
26
enhancement factors not found by the jury or admitted by the petitioner in violation of Apprendi
v. New Jersey, 530 U.S. 466 (2000). (Doc. No. 1 at 7.) On direct appeal in state court, he
asserted the trial court erred in enhancing his sentence based on an “exceptional cruelty”
enhancement factor and in ordering partial consecutive sentencing. (Doc. No. 13-14 at 84–91.)
The Tennessee Court of Criminal Appeals rejected those claims:
Finally, the appellant contends that his effective sentence is excessive because the
trial court misapplied an enhancement factor and erred by ordering consecutive
sentencing. The State contends that the appellant’s effective seventy-five-year
sentence is proper. We agree with the State.
No witnesses testified at the appellant’s sentencing hearing, but the State
introduced the appellant’s presentence report into evidence. According to the
report, the then twenty-eight-year-old appellant was expelled from high school in
the eleventh grade, never earned a GED, and had a one-year-old daughter. In the
report, the appellant denied having any physical or mental disabilities but
admitted using marijuana since he was thirteen years old. The report shows that
the appellant worked as a laborer for Industrial Staffing from July 2006 to
September 2007. According to the report, the appellant has two prior convictions
for criminal trespassing and one prior conviction each for kidnapping, sexual
battery, and casual exchange.
The trial court found that the following enhancement factors applied to all of the
appellant’s convictions: (1), that the appellant “has a previous history of criminal
convictions or criminal behavior, in addition to those necessary to establish the
appropriate range”; (4), that the victim “was particularly vulnerable because of
age or physical or mental disability”; and (14), that the appellant abused a position
of private trust. Tenn. Code Ann. § 40-35-114(1), (4), (14). The trial court gave
great weight to the factors. The trial court also applied enhancement factor (5),
that the appellant “treated, or allowed a victim to be treated, with exceptional
cruelty during the commission of the offense,” to the appellant’s convictions in
counts 3 through 7, but did not give the factor much weight. Tenn. Code Ann.
§ 40-35-114(5). The trial court noted that the range of punishment for the
appellant’s aggravated child abuse and aggravated child neglect convictions,
Class A felonies, was fifteen to twenty-five years and that his range of
punishment for the child neglect conviction, a Class E felony, was one to two
years. See Tenn. Code Ann. § 40-35-112(a)(1), (5). The trial court sentenced the
appellant as a Range I, standard offender to the maximum punishment in the
range for all seven convictions.
Regarding consecutive sentencing, the trial court found the appellant to be a
dangerous offender “whose behavior indicates little or no regard for human life
and no hesitation about committing a crime in which the risk to human life is
27
high.” Tenn. Code Ann. § 40-35-115(b)(4). The trial court explained,
This was a very young child who was severely abused. The
defendant has been convicted of that. Now, the mere fact that I
have found that factor four applies does not stop the inquiry
because pursuant to Wilkerson I have to find that there’s an
aggregate term reasonably related to the severity of the offenses,
and it’s necessary to protect the public from further serious
criminal conduct by the defendant. He has previously been
convicted of some very serious offenses involving sexual battery
and kidnapping. He then—on this particular series of events there’s
like three separate things that are going on. You’ve got the first
incident in April, then you’ve got the broken arm, and then you’ve
got the other. So I think that there is some need to—for
consecutive sentences in this particular case.
The trial court merged count 2 into count 1. The trial court ordered that the
appellant’s twenty-five year sentences in counts 3, 4, and 5 be served concurrently
with each other and that his twenty-five year sentences in counts 6 and 7 be
served concurrently with each other. However, the trial court ordered that the two
effective twenty-five year sentences be served consecutively to each other and
consecutively to his twenty-five year sentence in count 1 for a total effective
sentence of seventy-five years in confinement.
Appellate review of the length, range or manner of service of a sentence is de
novo. See Tenn. Code Ann. § 40-35-401(d). In conducting its de novo review, this
court considers the following factors: (1) the evidence, if any, received at the trial
and the sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information
offered by the parties on enhancement and mitigating factors; (6) any statistical
information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement by the appellant in
his own behalf; and (8) the potential for rehabilitation or treatment. See Tenn.
Code Ann. §§ 40-35-102, -103, -210; see also State v. Ashby, 823 S.W.2d 166,
168 (Tenn. 1991). The burden is on the appellant to demonstrate the impropriety
of his sentence. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.
Moreover, if the record reveals that the trial court adequately considered
sentencing principles and all relevant facts and circumstances, this court will
accord the trial court’s determinations a presumption of correctness. Id. at (d);
Ashby, 823 S.W.2d at 169.
The appellant asserts that the trial court misapplied enhancement factor (5)
regarding the victim’s being treated with exceptional cruelty. In State v. Arnett, 49
S.W.3d 250, 258 (Tenn. 2001), our supreme court concluded that the exceptional
cruelty factor is applicable in cases of “extensive physical abuse or torture.” In
this case, the appellant’s acts of abuse and neglect in April and June caused the
victim to have a concussion, bleeding in the brain, retinal hemorrhages, and
28
seizures. The trial court did not err by applying factor (5). In any event, the trial
court gave great weight to enhancement factors (1), (4), and (14) but little weight
to factor (5). Therefore, even if the court had misapplied enhancement factor (5),
it would not have justified reducing the appellant’s sentences.
The appellant also argues that the trial court erred by ordering consecutive
sentencing. Specifically, the appellant contends that the State failed to establish
that his effective seventy-five-year sentence is reasonably related to the severity
of the offenses or necessary to protect the public.
In order to find that a defendant is a dangerous offender, a court must also find
that (1) the sentences are necessary in order to protect the public from further
misconduct by the defendant and that (2) the terms are reasonably related to the
severity of the offenses. State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995);
see also State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999). In the instant case, the
trial court found that the appellant had been previously convicted of serious
offenses. The court also noted that the victim was severely abused in this case.
The court properly addressed the Wilkerson factors. Accordingly, the appellant is
not entitled to relief on this issue.
(Doc. No. 13-16 at 24–28.)
The petitioner’s state-court brief did not raise, and the state appellate court did not
address, any claim that the petitioner’s sentence was enhanced in violation of Apprendi. He
simply asserted in state court that the evidence did not support one of the four enhancement
factors applied. The state appellate court rejected that claim on the merits, and the petitioner
does not reassert it here.
Accordingly, the petitioner’s Apprendi claim that his sentence
enhancement violated federal constitutional law is procedurally defaulted and not subject to
habeas review.
With regard to the petitioner’s claim about consecutive sentencing, he has not
demonstrated that the state court’s determination was contrary to or an unreasonable application
of any clearly established federal law. Absent evidence that a petitioner’s sentence exceeded the
statutory maximum for his crime, the length of his sentence is typically not cognizable in habeas
corpus proceedings. See Hutto v. Davis, 454 U.S. 370, 373–74 (1982); Austin v. Jackson, 213
F.3d 298, 301–02 (6th Cir. 2000). The petitioner’s sentences were within the statutory ranges for
29
his offenses, and the state court reasonably found that the severity of his new offenses combined
with his prior convictions for serious crimes warranted consecutive sentencing under state law.
In the absence of any federal law dictating against that determination, the petitioner is not
entitled to relief on this claim.
E. COUNSEL’S ADVICE ABOUT WAIVING RIGHT TO TESTIFY
The petitioner claims that his trial counsel was ineffective for advising him to waive his
right to testify, failing to prepare him to testify, and “refus[ing] to allow[] him to testify.” (Doc.
No. 1 at 7.) He alleges that but for counsel’s ineffectiveness, he could have testified and rebutted
Watkins’s testimony. (Id.) At the point during trial when the defense advised the trial court that
the petitioner would not be testifying, the petitioner was placed under oath and had the following
exchange with the court:
THE COURT: All right. Mr. Watts, you have an absolute right to testify in this
case. That’s your choice. Mr. Engle and Ms. McWeay can give you all
kinds of advice about that, but you ultimately have to decide that. After
the State’s proof is finished and we only have a little more to go—then
you can testify if you want to. And if you choose not to, I will tell the Jury
they can’t consider your decision not to testify for any reason. Now, I have
a form that you have signed—that you and Mr. Engle have signed today
that tells me that you are not wanting to testify. Is that correct?
DEFENDANT WATTS: Yes, ma’am.
THE COURT: Have you thoroughly discussed with him about testifying or not
testifying?
DEFENDANT WATTS: Yes, ma’am.
THE COURT: Okay. And after you discussed that with him, then did you decide
not to testify?
DEFENDANT WATTS: Yes, ma’am.
THE COURT: Okay. Is anybody forcing you to do that?
DEFENDANT WATTS: No, ma’am.
THE COURT: Okay. So it’s your choice?
DEFENDANT WATTS: Yes, ma’am.
30
THE COURT: You signed this form after you talked to him; is that correct?
DEFENDANT WATTS: Yes, ma’am.
THE COURT: Well, I’m going to date it today, which is September the 2nd. And
this will be made part of the record.
(Doc. No. 13-8 at 116–18.)
The petitioner asserted during post-conviction proceedings that “Trial Counsel did not
explain . . . the significance of his choice not to testify at trial” and that the petitioner “was
unable to fully evaluate his decision not to testify prior to signing the waiver.” (Doc. No. 13-24
at 11–15.) The Tennessee Court of Criminal Appeals summarized the relevant post-conviction
testimony and rejected that claim:
Trial counsel testified that he and the petitioner discussed the petitioner’s
potential testimony during their numerous meetings prior to trial. They discussed
the subject of the proposed testimony, topics the petitioner should be prepared to
address, things the petitioner should do while testifying, and things the petitioner
should avoid while testifying. They also discussed the adverse consequences of
testifying. Trial counsel felt some of the things the petitioner intended to say at
trial would not be helpful to his case. For example, the petitioner wanted to testify
regarding his good character. Trial counsel cautioned that by raising his character,
the petitioner may open the door to questions from the State about his prior
convictions for sexual battery and kidnapping.
During the break at the conclusion of the State’s case-in-chief, trial counsel and
the petitioner again discussed the petitioner’s potential testimony. They discussed
whether the testimony would be helpful given the fact the jury had already heard
the redacted statement he gave to police. According to trial counsel, it was the
petitioner’s decision not to testify. During his Momon hearing,4 the trial judge
confirmed the petitioner willingly waived his right to testify.
The petitioner was the final witness to testify during the post-conviction hearing.
The petitioner complained his attorney did not fight for him. . . . The petitioner
wanted a trial continuance because he felt they were not ready for trial. Trial
counsel never gave him a step-by-step explanation of what they were going to do
at trial or prepared him to testify. During their meetings, trial counsel would give
up and simply walk away from the table.
In Momon v. State of Tennessee, 18 S.W. 3d 152 (Tenn. 2000), the Tennessee Supreme Court
held that a defendant’s constitutional right to testify should be safeguarded by hearings
demonstrating on the record that any waiver of that right is intentionally made by the defendant
personally. Those hearings, like the one quoted above regarding the petitioner’s waiver of his
right to testify, are commonly referred to in Tennessee as “Momon hearings.”
4
31
The petitioner testified that he dropped out of school in the seventh or eighth
grade. Due to his lack of education, the petitioner did not understand the “big
words” used by his lawyer. He felt this was part of the reason his lawyer did not
want him to testify. According to the petitioner, sometimes “how I talk it might
not come out right,” so his lawyer thought he would say something detrimental in
front of the jury.
The petitioner wanted to testify so the jury would hear his story. He was present at
the home where the child was injured but innocent of the abuse and neglect
charges. He also wanted to tell the jury that he is not an abusive person, but trial
counsel told him that testimony would open the door to his prior convictions.
Eventually, after the trial went forward and his witnesses were not subpoenaed, he
“was like forget it” and signed the waiver form. When questioned by the trial
judge as to his statement at trial that he willingly signed the waiver, the petitioner
said he lied. According to the petitioner, trial counsel decided he would not
testify.
The petitioner testified the statement he gave police was true and admitted that the
jury heard a redacted version of that statement at trial. According to the petitioner,
had he been called as a witness, his testimony would have been similar to the
redacted statement. In addition, the petitioner would have asserted his innocence,
answered the State’s questions, and told the jury he is not an abusive person.
...
The petitioner contends trial counsel was ineffective by failing to adequately
prepare him to testify at trial, instead advising him to waive his right to testify.
Trial counsel testified at the post-conviction hearing that he met with the
petitioner approximately thirty-seven times prior to trial. During these meetings,
trial counsel and the petitioner discussed potential witnesses, the petitioner’s
proposed testimony, and the potential negative consequences of the petitioner’s
proposed testimony, including the possibility his prior criminal record might be
used against him. Trial counsel also expressed concerns regarding the relevance
and helpfulness of some of the petitioner’s proposed testimony. Trial counsel and
the petitioner again discussed the petitioner’s testimony at the close of the State’s
proof. According to trial counsel, following these discussions, the petitioner
decided not to testify. Despite later arguing he lied, the petitioner confirmed at his
Momon hearing that he understood his rights, and it was his decision not to testify.
The post-conviction court found trial counsel’s testimony regarding his trial
preparation, discussions with the petitioner, and the petitioner’s decision not to
testify to be credible. Giving deference to trial counsel’s trial strategy, the
petitioner has failed to show trial counsel was deficient in preparing him for trial,
including his advice regarding testimony. The petitioner is not entitled to relief on
this issue.
Interwoven with his claim that trial counsel failed to adequately advise him
concerning his right to testify, the petitioner claims trial counsel was ineffective in
failing to explain the accomplice jury instruction to him. The petitioner, claiming
the accomplice jury instruction “removed to a significant degree, the State’s
32
burden of proof since the jury was essentially instructed as a matter of fact by the
Judge prior to deliberation that the child in this case was in fact abused and/or
neglected,” contends he would have testified if he had been fully informed about
the instruction. However, this Court addressed the impact of the accomplice
instruction on the State’s burden of proof on direct appeal and determined that,
contrary to the petitioner’s claim, the “trial court’s instruction held the State to a
higher burden, requiring the jury to find that [the accomplice’s] testimony was
corroborated. Watts, 2012 WL 1591730 at *16.
Additionally, even if trial counsel was deficient in failing to adequately advise the
petitioner concerning the accomplice instruction, the petitioner failed to show
how he was prejudiced by trial counsel’s actions. As noted by the post-conviction
court, the petitioner “was able to present his version of events through his police
statement that was played for the jury,” and the petitioner “had no additional
substantive additions to this initial statement.” Furthermore, the post-conviction
court accredited the testimony of trial counsel concerning the numerous
discussions he had with the petitioner concerning his right to testify, including his
concern that the petitioner would open the door to questioning about his prior
convictions for sexual battery and kidnapping should he testify. The petitioner is
not entitled to relief on this claim.
(Doc. No. 13-26 at 7–8, 12–13.)
All federal claims of ineffective assistance of counsel are subject to the highly deferential
two-prong standard of Strickland v. Washington, 466 U.S. 668 (1984), which 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. 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 688–89. The “prejudice” component of the 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
33
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466
U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id.
The Supreme Court has further explained the Strickland prejudice requirement as
follows:
In assessing prejudice under Strickland, the question is not whether a court can be
certain counsel’s performance had no effect on the outcome or whether it is
possible a reasonable doubt might have been established if counsel acted
differently. Instead, Strickland asks whether it is “reasonably likely” the result
would have been different. This does not require a showing that counsel’s actions
“more likely than not altered the outcome,” but the difference between
Strickland’s prejudice standard and a more-probable-than-not standard is slight
and matters “only in the rarest case.” The likelihood of a different result must be
substantial, not just conceivable.
Harrington v. Richter, 562 U.S. 86, 111–12 (2011) (internal citations omitted).
As discussed above, however, a federal court may not grant habeas relief on a claim that
has been rejected on the merits by a state court, unless the petitioner shows that the state court’s
decision “was contrary to” law clearly established by the United States Supreme Court, or that it
“involved an unreasonable application of” such law, or that it “was based on an unreasonable
determination of the facts” in light of the record before the state court. 28 U.S.C. §§ 2254(d)(1)
and (2); Williams v. Taylor, 529 U.S. 362, 412 (2000). Thus, when an exhausted claim of
ineffective assistance of counsel is raised in a federal habeas petition, the question to be resolved
is not whether the petitioner’s counsel was ineffective. Rather, “[t]he pivotal question is whether
the state court’s application of the Strickland standard was unreasonable.” Harrington v. Richter,
562 U.S. at 101. As the Supreme Court clarified in Harrington,
This is different from asking whether defense counsel’s performance fell below
Strickland’s standard. Were that the inquiry, the analysis would be no different
than if, for example, this Court were adjudicating a Strickland claim on direct
review of a criminal conviction in a United States district court. Under AEDPA,
34
though, it is a necessary premise that the two questions are different. For purposes
of § 2254(d)(1), an unreasonable application of federal law is different from an
incorrect application of federal law. A state court must be granted a deference and
latitude that are not in operation when the case involves review under the
Strickland standard itself.
Id. (internal quotation marks and citation omitted).
The Tennessee Court of Criminal Appeals correctly identified and summarized the
Strickland standard applicable to this claim. (Doc. No. 13-26 at 10–12.) Accordingly, the critical
question is whether the state court applied Strickland reasonably.
Petitioner has not established that this disposition of his claim was objectively
unreasonable.
The state courts obviously credited counsel’s testimony that he repeatedly
discussed the petitioner’s potential testimony with him, that he had strategic reasons for advising
against testifying, and that it was the petitioner’s decision not to testify. Moreover, the trial court
had the opportunity to witness the petitioner’s demeanor during both his Momon hearing and his
post-conviction hearing and assess his credibility relative to counsel’s. “[F]ederal habeas courts
do not have license, under § 2254(d), to redetermine witness credibility, whose demeanor is
observed exclusively by the state court.” Givens v. Yukins, 238 F.3d 420 (Table), 2000 WL
1828484, at *10 (6th Cir. Dec. 5, 2000) (citing Marshall v. Lonberger, 459 U.S. 422, 434
(1983)). Accordingly, this court cannot find the state court’s conclusion that counsel did not
perform deficiently to be unreasonable on this record. Moreover, the petitioner’s proposed
testimony would have added nothing to the recorded statement seen by the jury except for the
petitioner’s beneficial assessment of his own character, which would have opened the door to—
and been effectively rebutted by—his prior convictions for kidnapping and sexual battery.
Under those circumstances, the state court reasonably found that the petitioner was not
prejudiced by counsel’s advice not to testify.
35
Because the state court’s ruling on this claim was neither contrary to nor an unreasonable
application of Strickland, the petitioner is not entitled to relief on this claim.
F. COUNSEL’S FAILURE TO CALL WITNESSES
The petitioner claims that trial counsel was ineffective for failing to call thirteen
witnesses who would have testified that Ms. Watkins was responsible for the injuries to the
victim. (Doc. No. 1 at 8.) Specifically, the petitioner points to the potential testimony of Richard
Watts, who testified at the post-conviction hearing that he saw the victim healthy and happy in
Ms. Watkins’s home on one of the days of alleged abuse and that the petitioner spent time with
other children and never harmed them. (Id.)
The petitioner exhausted a claim in post-conviction proceedings about counsel’s failure
to call witnesses. The Tennessee Court of Criminal Appeals summarized the relevant testimony
and rejected the claim:
The post-conviction court subsequently held a hearing in which potential witness
Richard Watts, trial counsel, and the petitioner testified. Mr. Watts testified that
he is the petitioner’s brother and could have testified at trial but was not
subpoenaed. According to Mr. Watts, had he been called as a witness, he would
have testified that he was at Ms. Watkins’ home on one of the days the alleged
abuse occurred, and the child was happily playing and appeared healthy. He did
not see anyone injure the child.
Mr. Watts testified that the petitioner had a good relationship with his teenaged
daughter, and when he was not incarcerated, he spent every other weekend with
her. To Mr. Watts’ knowledge, the petitioner has never abused his daughter. Mr.
Watts also testified that he has allowed the petitioner to be alone with his children
and no abuse occurred. If Mr. Watts thought either Ms. Watkins or the petitioner
abused the victim, he would have reported it to the authorities himself.
...
Trial counsel [testified that he] met with the petitioner approximately thirty-seven
times prior to trial. The petitioner gave him a list of thirteen potential witnesses
during one of their meetings. Some of the witnesses had irrelevant information or
raised questions of character that were not germane to the case. Many of the
witnesses could not be located. Both trial counsel and his investigators spoke with
several family members in an attempt to track down the missing witnesses, but it
36
was not possible to find all thirteen. Ultimately, trial counsel decided not to
subpoena any of the witnesses suggested by the petitioner.
The petitioner never mentioned his brother was in Ms. Watkins’ home the
morning of one of the incidents of abuse. Instead, when trial counsel and the
petitioner discussed Mr. Watts, their conversations focused on using Mr. Watts to
help find other witnesses, and Mr. Watts agreed to assist. When discussing the
petitioner, Mr. Watts never mentioned to trial counsel or the investigators that he
was present in Ms. Watkins’ home on one of the days the victim was injured.
...
The petitioner was the final witness to testify during the post-conviction hearing. .
.. When he asked trial counsel about the thirteen witnesses, trial counsel simply
said his investigators were on it, but he would never tell the petitioner what the
investigators were doing or what they needed to locate the witnesses. The
petitioner wanted a trial continuance because he felt they were not ready for trial.
...
The petitioner has likewise not shown trial counsel provided ineffective
representation by failing to subpoena the thirteen alleged witnesses suggested by
the petitioner. The petitioner only called one of the alleged witnesses at his postconviction hearing—Richard Watts. According to Mr. Watts, had the petitioner
called him as a witness at trial, he would have testified that he was in Ms.
Watkins’ home on one of the dates of abuse, and the victim was seemingly
healthy and happily playing. In addition, he would have testified that the
petitioner frequently spent time with his own daughter, as well as Mr. Watts’
children, and never harmed them. Trial counsel testified that he had been in
contact with Mr. Watts prior to trial, and Mr. Watts only provided assistance with
locating witnesses. Neither Mr. Watts nor the petitioner advised trial counsel that
Mr. Watts had been in the home on one of the dates of abuse.
Trial counsel’s conduct must be evaluated from his perspective at the time he
decided not to call Mr. Watts has a witness. Trial counsel offered detailed
testimony regarding the steps he took to prepare for trial, and during his
investigation, he never learned that Mr. Watts had been present on one of the
dates of abuse. The post-conviction court accredited the testimony of trial
counsel, and we will not reweigh or reevaluate this evidence on appeal. Giving
deference to trial counsel’s tactical decision not to call Mr. Watts as a witness, the
petitioner has not established trial counsel was deficient in this regard. The
petitioner is not entitled to relief on this issue.
In addition, the petitioner failed to call the remaining twelve witnesses to testify at
his post-conviction hearing. When a petitioner contends trial counsel failed to
discover, interview, or present witnesses in support of his defense, the petitioner
must call those witnesses to testify at an evidentiary hearing. Black v. State, 794
S.W.2d 752, 757 (Tenn. Crim. App. 1990). This is the only way the petitioner can
establish:
37
that (a) a material witness existed and the witness could have been
discovered but for counsel’s neglect in his investigation of the
case, (b) a known witness was not interviewed, (c) the failure to
discover or interview a witness inured to his prejudice, or (d) the
failure to have a known witness present or call the witness to the
stand resulted in the denial of critical evidence which inured to the
prejudice of the petitioner.
Id. Even if a petitioner is able to show counsel was deficient in the investigation
of the facts or calling a known witness, the petitioner is not entitled to postconviction relief unless he produces a material witness at his post-conviction
evidentiary hearing who “(a) could have been found by a reasonable
investigation and (b) would have testified favorably in support of his defense if
called.” Id. at 758. Without doing this, the petitioner cannot establish the
prejudice requirement of the two-prong Strickland test. Id.
In the present matter, the petitioner has not shown he was prejudiced by trial
counsel’s decision not to subpoena the remaining twelve witnesses. The petitioner
did not present those witnesses at his post-conviction evidentiary hearing, and we
will not speculate as to what those witnesses would have said if called to testify at
trial. See Black, 794 S.W.2d at 757. The petitioner is not entitled to relief on this
issue.
(Doc. No. 13-26 at 5–7, 13–14.)
As this court observed above, the state court correctly identified and summarized the
Strickland standard applicable to this claim. Accordingly, the petitioner is only entitled to relief
if he can demonstrate that the state court’s ruling was unreasonable. But the petitioner’s habeas
petition does not identify any portion of the state court’s ruling as objectively unreasonable.
(Doc. No. 1 at 8.) The petitioner restates his brother’s proposed testimony, but he does not
acknowledge that the state court credited counsel’s testimony that nobody told him that the
brother was at the scene of any of the alleged abuse or demonstrate that the court’s credibility
assessment was unreasonable. He also does not point to any facts or law making it unreasonable
for the state court to have credited counsel’s testimony to the effect that he made a strategic
decision not to offer testimony that was irrelevant or amounted to character evidence, such as the
brother’s proposed testimony that the petitioner had not abused other children with whom he
38
spent time.
And finally, the state court’s conclusion that the petitioner had failed to establish that
counsel was ineffective in failing to present testimony from any other witnesses is not only
reasonable but fully supported by federal law. See Hutchison v. Bell, 303 F.3d 720, 748–749 (6th
Cir. 2002) (noting that “a petitioner cannot show deficient performance or prejudice resulting
from a failure to investigate if the petitioner does not make some showing of what evidence
counsel should have pursued and how such evidence would have been material”).
The state court concluded that the petitioner failed to demonstrate either deficient
performance or prejudice arising from counsel’s decision not to present witnesses, and the
petitioner has not demonstrated that those conclusions were unreasonable. Accordingly, he is
not entitled to relief on this claim.
G. COUNSEL’S FAILURE TO FILE MOTION IN LIMINE
The petitioner alleges that trial counsel was ineffective for “failing to file a motion in
limine to exclude reference to the facts Ms. Watkins lived in the projects and the petitioner lived
on the streets” and that the state court “committed errors” in rejecting this claim in postconviction proceedings. (Doc. No. 1 at 8.)
Petitioner raised this claim in his amended post-conviction petition. (Doc. No. 13-20 at
75.) During the post-conviction hearing, the petitioner’s post-conviction counsel identified the
allegedly objectionable references in question,
Including during the State’s opening statement where the ADA referenced (1) that
Ms. Watkins lived on South 7th where she “rented an apartment in public
housing,” (Trial Rec., Ex. 2, vol. 2, at 7); (2) Ms. Watkins purchasing a taco plate
from a “food bootlegger,” which was defined as “someone in the projects who
sells food, not a restaurant, not a licensed facility but someone who will sell food
to others,” (id. at 19); and (3) multiple references to “housing projects,” (see, e.g.,
id. at 18 & 19).
39
(Doc. No. 13-20 at 101.) The Tennessee Court of Criminal Appeals summarized the relevant
testimony and went on to deny relief on this claim:
Trial counsel admitted that during trial, he never objected to the references made
by the State to the petitioner’s and Ms. Watkins’ living in a housing project.
Instead, he questioned prospective jurors about this during voir dire by inquiring
into whether the petitioner’s poverty caused bias. Trial counsel admitted these
references could have prejudiced his client.
...
The petitioner next argues trial counsel provided ineffective assistance by failing
to file a motion in limine to exclude reference to the facts Ms. Watkins lived in
the “projects” and the petitioner “lived on the streets.” We disagree. Trial counsel
testified that rather than filing a motion in limine, he questioned potential jurors
during voir dire regarding potential bias caused by the petitioner’s economic
status. This was a strategic decision made after what the record reflects was
adequate preparation for trial.
This Court must be highly deferential to counsel’s performance. Burns, 6 S.W.3d
at 462. We will not grant the petitioner the benefit of hindsight by secondguessing reasonably based trial strategy. See Adkins v. State, 911 S.W.2d 334, 347
(Tenn. Crim. App. 1994). Moreover, “[t]he fact that a particular strategy or tactic
failed or hurt the defense, does not, standing alone, establish unreasonable
representation.” Goad, 938 S.W.2d at 369. Again giving deference to trial
counsel’s strategy, the petitioner has failed to show counsel was deficient by
failing to exclude references to the “projects” and “living on the streets”5 prior to
trial. Accordingly, he is not entitled to relief on this issue.
(Doc. No. 13-26 at 6, 14.)
As this court has already observed, the state court identified the correct standard
applicable to this claim under Strickland.
Pursuant to that standard, there is a “strong
presumption” that trial counsel’s actions were based upon “sound trial strategy” and were,
therefore, not deficient. Strickland, 466 U.S. at 688–89. Accordingly, it was not unreasonable
for the state court to defer to counsel’s strategic decision to mitigate any impact of the
5
The court notes that neither the petitioner’s amended post-conviction petition, his postconviction appellate brief, the post-conviction trial court’s ruling, nor the Tennessee Court of
Criminal Appeals’s opinion contains any citation to any reference at trial to the petitioner’s
living “on the streets,” and the court has been unable to locate any such reference in the record.
40
petitioner’s impoverished circumstances during jury selection rather than by contesting the
admissibility of evidence about his living arrangements and the scene of the crimes.6 The
petitioner’s belief that the state court’s ruling was error does not make it objectively
unreasonable, as required to merit relief under AEDPA.
H. CUMULATIVE EFFECT OF COUNSEL’S INEFFECTIVENESS
Finally, the petitioner asserts that his case merits habeas relief based on the cumulative
effect of trial counsel’s ineffectiveness. (Doc. No. 1 at 8.) The Tennessee Court of Criminal
Appeals rejected this claim on post-conviction appeal:
The petitioner argues the cumulative effect of trial counsel’s inadequate
representation requires a new trial. The cumulative error doctrine recognizes that
there may be many errors committed in trial proceedings, each of which
constitutes mere harmless error in isolation, but “have a cumulative effect on the
proceedings as great as to require reversal in order to preserve a defendant’s right
to a fair trial.” State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010). When considering
cumulative error, this Court may look to the case as a whole, the numbers of
errors committed, their interrelationship and combined effect, and the strength of
the State’s case. Id. (quoting United States v. Sepulveda, 15 F.3d 1161, 1196 (1st
Cir. 1993)). In this case, the petitioner failed to carry his burden of showing trial
counsel deviated from the required standard of assistance. Accordingly, the
petitioner has not established that the cumulative effect of trial counsel’s errors
resulted in prejudice. The petitioner’s claim is without merit.
(Doc. No. 13-26 at 14–15.)
This claim fails on habeas review for at least two reasons. First, cumulative-error claims
are not cognizable on habeas review because the Supreme Court has never held that cumulative
errors may form the basis for issuance of a writ of habeas corpus. Sheppard v. Bagley, 657 F.3d
6
Moreover, the petitioner’s counsel himself elicited testimony from the Child Protective
Services case manager, Falonda Tolston, about the fact that Ms. Watkins could have been
evicted from the public housing project where she lived if it had become known that a nonfamily-member was living there with her. (Doc. No. 13-5 at 67.) It would be reasonable to
conclude, therefore, that counsel made a strategic decision that knowledge of the public housing
restrictions benefitted the petitioner’s case by providing a benign explanation for why Ms.
Watkins lied about whether the petitioner was living there.
41
338, 348 (6th Cir. 2011); Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002). And second, the
state court held that trial counsel did not commit any constitutional error in his representation of
the petitioner, and this court has found that ruling to be reasonable. Accordingly, there are no
instances of ineffectiveness that could have had a cumulative effect on the outcome of the
petitioner’s case. The petitioner is not entitled to relief on this claim.
V.
CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus will be granted in part
with respect to the petitioner’s Claim 1, and a writ will issue on the portion of that Claim related
to the petitioner’s conviction on Count 6. In all other respects, the petition will be denied.
An appropriate order shall enter.
ALETA A. TRAUGER
United States District Judge
42
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