The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
Roger D. Harris ("Harris" or "petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 1991 state court convictions [Court File No.1]. Howard Carlton ("respondent"), Warden of the facility where Harris is housed, has filed a motion for summary judgment [Court File No. 7].
After considering the filings of petitioner and respondent, the record of the state proceedings, and the applicable law, the Court will GRANT respondent's motion for summary judgment [Court File No. 7] and DISMISS petitioner's § 2254 petition [Court File No. 1].
A state criminal defendant may obtain federal habeas relief if he can demonstrate he is in custody pursuant to the judgment of a state court in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254. Under Rule 8 of the Rules Governing Section 2254 Proceedings in the United States Districts Courts, the Court is to determine, after a review of the entire record, whether an evidentiary hearing is required. After carefully reviewing the record, the Court finds it unnecessary to hold an evidentiary hearing.
Under 28 U.S.C. § 2254(d), which is a part of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a district court may not grant a writ of habeas corpus for any claim adjudicated on the merits in state court unless the adjudication resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. In addition, state court factual findings are to be presumed correct unless the petitioner offers clear and convincing evidence to the contrary.
Ordinarily, when a state court issues an order denying relief without discussing the applicable law, this Court must "'conduct an independent review of the record and applicable law to determine whether the state court decision is contrary to federal law, unreasonably applies clearly established law, or is based on an unreasonable determination of the facts in light of the evidence presented.'" Brown v. Pitcher, 19 Fed.Appx. 154 (6th Cir.2001) (unpublished table decision), available in 2001 WL 700858, at *2,(quoting Harris v. Stovall, 212 F.3d 940, 942 (6th Cir. 2000), cert. denied, 532 U.S. 947 (2001)), cert. denied, 534 U.S. 1057 (2001) . "'That independent review, however, is not a full, de novo, review of the claims, but remains deferential because the court cannot grant relief unless the state court's result is not in keeping with the strictures of the AEDPA.'" Palazzolo v. Gorcyca, 244 F.3d 512, 516 (6th Cir.) (quoting Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000), cert. denied, 532 U.S. 947 (2001)), cert. denied, 534 U.S. 828 (2001). Credibility findings made by state courts are entitled to a presumption of correctness. McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996), cert. denied, 520 U.S. 1257 (1997), overruled on other grounds by In re Abdur'Rahman, 392 F.3d 174 (6th Cir. 2004), judgment vacated by Bell v. Abdur'Rahman, 545 U.S. 1151 (2005); Smith v. Jago, 888 F.2d 399, 407 (6th Cir. 1989), cert. denied, 495 U.S. 961 (1990).
On June 27, 1991, Petitioner was convicted of first degree murder and reckless endangerment by a jury in the Criminal Court for Unicoi County, Tennessee. For those offenses, he received respective sentences of life and a concurrent two-years imprisonment. Petitioner filed a direct appeal to the Tennessee Court of Criminal Appeals, attacking only the murder conviction. The appellate court affirmed and Tennessee Supreme Court denied further review.*fn1
On March 15, 1995, Petitioner filed a pro se petition for post-conviction relief in state court. Several interlocutory appeals followed before the post-conviction petition was finally heard on the merits and denied. The Tennessee Court of Criminal Appeals denied relief. Petitioner's application for permission to appeal was denied by the Tennessee Supreme Court on January 26, 2004.
The facts of the crime will be taken from the appellate court's opinion on direct review. State v. Harris, 1992 WL 171368 (Tenn.Crim.App.1992). The facts presented in the state post conviction hearing will be taken from the appellate court's opinion affirming the denial of petitioner's state post-conviction petition. Harris v. State, 2003 WL 22174293 (Tenn.Crim.App. 2004).
A. Facts from the Criminal Trial
The facts, as related in the appellate court's decision, are as follows: On December 21, 1990, the appellant's teenage girlfriend left him and moved in with another man, Jeff Higgins. The appellant, a 36-year-old man, spent that night and the next day drinking, taking drugs, making threats against Mr. Higgins, and even shooting up his trailer home, injuring one of his friends. At about eight o'clock in the evening, he went to Mr. Higgins's home and after a brief conversation with Higgins and the girlfriend, he pulled out a gun and emptied it into the victim's chest, face, thigh and stomach, killing him instantly.
There was testimony from Steve Lewis that the appellant and the victim actually met and spoke to each other calmly at least twice on the day in question prior to the fatal episode. Mr. Lewis testified that he spoke with the appellant shortly after the killing and he seemed calm, coherent and sober. When Mr. Lewis told the appellant that he heard he had shot the victim five times, the appellant responded, "No, it was nine times." Mr. Lewis also testified that the appellant had stated earlier that day that he was going to "blow [the victim] away."
The appellant, testifying in his own behalf, claimed that he had no independent recollection of the incident. He stated that he was too intoxicated to recall anything. State v. Harris, 1992 WL 171368, at *1 (Tenn.Crim.App. 1992).
B. Facts from the Post-Conviction Hearing
The testimony given at the post-conviction hearing, as summarized in the appellate court's opinion, is set forth below.
The petitioner testified that he was represented by the same trial counsel at his preliminary hearing, at trial, and on appeal. He said he asked his lawyer to file a motion for him to be released on bail, but his lawyer failed to do so. The State showed the petitioner an exhibit, which was a motion for the court to set bail for the petitioner prepared by the petitioner's trial counsel. The petitioner admitted that the motion was filed in his case by his trial counsel, but said he was not told why his motion was denied. He said he asked his attorney to appeal the trial court's decision denying him bond, and his attorney said the trial court denied his appeal. He said he wanted to be released from jail so he could work to help his family pay for his defense. He also said that being released from jail would have made it more convenient to meet with his attorney. He said that he never had the opportunity to meet his attorney in private and that they only met four times for five to fifteen minutes per meeting. He said that his attorney failed to show him any police reports, autopsy reports, lab reports, or photographs from the crime scene and that his attorney told him that he had talked with many witnesses and had done a thorough investigation. He said that he and his attorney did not discuss the hiring of any experts in his case and that his attorney told him that he had his own private investigator. He said that even though he gave his attorney the names of several potential witnesses, his attorney failed to interview any of them and the petitioner was the only defense witness. He said his attorney told him that nobody wanted to get involved in his case and testify on his behalf. The petitioner said that the word "intentionally" had been added to his indictment without his knowledge. He said his attorney told him that he planned to represent him before the Tennessee Supreme Court and never indicated that he did not plan to go forward on the petitioner's behalf. He said he told his attorney that he knew one of the jurors and that his attorney assured him "it'll be alright." He said that when asked, the juror denied knowing the petitioner.
On cross-examination, the petitioner testified that he went to school with the juror and that she was a friend of the victim. He said he told his attorney that the juror was a friend of the victim, and his attorney responded with, "I've got that."
The petitioner testified that every time he confronted his attorney about evidence and other things, his attorney would tell him that "your family has retained me, Mr. Harris, I've got this." He said that he wanted to see the search warrant and other documents, but his attorney did not give him a copy. He said that his attorney allowed law enforcement officers and jailers to stand within earshot of them during their meetings. He said he thought some of the jailers had "snitches," because the District Attorney said that inmates had claimed that he planned to plead temporary insanity. He said that no informants testified before the court.
On redirect, the petitioner testified that the longest meeting he had with his trial counsel lasted twenty minutes and that his family retained counsel for him because he was unable to financially do so himself. He said that on several occasions, his trial counsel failed to bring the petitioner's file or a notebook to their meeting.
Robert L. Harris, brother of the petitioner, testified that he was not on the scene when the victim was shot. He said that on the night of the incident, he was called to come to the scene to get the petitioner out from under the trailer. He said that he called to his brother, who came out from under the trailer and was handcuffed by police. He said that he was not interviewed by the petitioner's attorney and would have been able to remember more details if he had been interviewed back in 1990 or 1991. He said he did not testify at the petitioner's trial. On cross-examination, he testified that he had little contact with the petitioner after he was taken into custody. He said he did not contact the petitioner's attorney to tell him that he wished to testify nor did he attend the trial. He said that he would have been at his brother's trial if he had been subpoenaed even though, due to his own criminal record, he was advised by his own attorney not to attend.
Deborah Simmons, the petitioner's sister, testified that she was at her mothers home when she learned of the incident involving the petitioner. She said Investigator Don Whitson told her that her brother shot the victim and that all of the witnesses stated that the petitioner was drunk and "out of his mind." She said that she was involved in obtaining counsel for the petitioner and paid a portion of his fees. She said the petitioner's attorney did not ask her what she knew about the case. She said that she did not think about telling him about her conversation with Investigator Whitson until she heard him testify in court that the petitioner was "straight" and "knew what was going on." On cross-examination, Simmons testified that she asked Investigator Whitson if the petitioner had been drinking the night of the shooting because "if he was in his right mind he wouldn't have done something like that."
The petitioner's trial counsel testified that he has been an attorney for thirty-two years and that 95% of his practice consists of criminal work. He said that he was contacted by the petitioner's sister and was retained to represent the petitioner. He said he does not routinely give defendant's copies of motions nor does he remember the petitioner asking for copies of anything. He said he would not allow police officers to be within earshot of a conference with his client. He said that the provision for attorney/client conferences "weren't the best in the world" and that he would be mindful of security during any conversation with his client. He said that he did not remember the number of times he met with the petitioner, but the gist of the meetings had to do more with mitigating the offense than with an absolute defense. He said that "without a doubt there was an extremely high level of intoxication involved in the entire incident." He said his strategy was "to reduce the case from first degree murder to second degree murder based on the level of intoxication, attacking the element of premeditation." He said the petitioner's girlfriend had a relationship with the victim and had stayed with the victim on the night before the incident. He said that during the course of the day of the incident, the petitioner searched for his girlfriend, made threats, and got intoxicated. He said that he did not have any recollection of the indictment being altered to include the word "intentionally." He said he was fairly confident that if he objected to the amendment, the "court probably wouldn't have granted the motion, and we'd wound up with a continuance, and the case would have been resubmitted to the Grand Jury." He said he did not recall telling the petitioner he would file a Rule 11 appeal to the Tennessee Supreme Court, but he would have filed it had he told the petitioner he would do so. He said he did not see any reason for a mental evaluation of the petitioner and could not recall whether he used his own private investigator. He said that if the petitioner had said he knew someone on the jury, he would have seen that the potential juror was excused. He said the only issue he presented to the Court of Criminal Appeals was that the trial court erred in giving the requested jury instructions regarding intoxication and premeditation.
On cross-examination, trial counsel testified that he was unable to locate the petitioner's file and that, due to the passage of time, his memory about the case was vague. He said there was no issue that would have merited securing an investigator, and he did not seek the help of any experts in the preparation of this case. He said he remembered talking to people who had seen the petitioner on the day of the incident. He said the trial court denied his request for bail, and he did not appeal its decision. He said he did not have any recollection about submitting motions in this case. He said he performs his own mental evaluation and relies on his training in "representing hundreds or thousands of clients." He said the petitioner's mental state may or may not have been admissible evidence, but he was aware of the petitioner's long history of drug and alcohol abuse. He said he did not remember sending a letter advising the petitioner that he would be responsible for filing his own Rule 11 application. On redirect-examination, he said the State's case was based on the assumption that the petitioner began forming the intent to kill many hours before he met the victim at about eight o'clock on the day of the incident.
Kent Garland testified that he was the prosecutor in the petitioner's case. He said that the petitioner's trial counsel "took a miserable set of facts and circumstances as far as the evidence that he had" to deal with and "tried to wear us out with it in the trial process." He said the facts in the case were overwhelming and he "couldn't imagine what possible defense that there might be available" to the petitioner. He said there was evidence of the petitioner's consumption of alcohol and marijuana over a period of time, which was an issue in the case. He said that every witness testified that the defendant had been consuming alcohol and marijuana during the day of the shooting. He said that Steven Lewis had been with the defendant on the day of the shooting and had testified to the defendant's consumption of alcohol. Garland said the defendant had a "nine shot .22 pistol" in his possession prior to the shooting and had shot Lewis in the foot after firing it inside his own trailer. He said Lewis testified that the defendant hid under this trailer. He said that when an indictment includes an error within the wording of first degree murder, an amendment is made before an indictment is read to a jury, and a change in the wording of an indictment is done prior to the beginning of trial. He said that the petitioner's trial counsel did not object to the amendment. He said the State did not offer to exclude anyone from the jury, and the defense used seven peremptory challenges, while the court used eighteen challenges. On cross-examination, he said there was never a death penalty notice in this case. He said the petitioner's trial counsel filed two pre-trial motions.
Harris v. State, 2003 WL 22174293 (Tenn.Crim.App. 2003), perm. app. denied, (Jan. 26, 2004).
Petitioner raises three main grounds for habeas corpus relief: ineffective assistance of counsel; denial of due process of law; and denial of a fair trial. Each claim, along with its various sub-claims, will be addressed in order.
A. Ineffective Assistance of Counsel
Petitioner charges that his attorney gave him ineffective assistance at trial, as well as on appeal. The criteria for determining whether a Sixth Amendment claim of ineffective assistance of counsel is meritorious is contained in Strickland v. Washington, 466 U.S. 668 (1984). Under the Strickland test, a petitioner must show two elements: (1) that his counsel's performance was deficient, i.e., counsel was not functioning as counsel guaranteed the defendant by the Sixth Amendment, and (2) that the deficient performance resulted in prejudice to the defense, i.e., deprived the defendant of a fair trial rendering the outcome of the trial unreliable. Id. at 687-88; McQueen v. Scroggy, 99 F.3d at 1310-11; Sims v. Livesay, 970 F.2d 1575, 1579-81 (6th Cir. 1992).To show deficient performance, the petitioner must demonstrate that the attorney's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88; McMann v. Richardson, 397 U.S. 759, 771 (1970). See also Flippins v. United States, 808 F.2d 16, 17-18 (6th Cir.), cert. denied, 481 U.S. 1056 (1987). There is a strong presumption that counsel's conduct was within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; Sims, 970 F.2d at 1579-80. The Court cannot indulge in hindsight, but must instead evaluate the reasonableness of counsel's performance within the context of the circumstances at the time of the alleged errors. Strickland, 466 U.S. at 690; McQueen, 99 F.3d at 1311. Trial counsel's tactical decisions are particularly difficult to attack. McQueen, 99 F.3d at 1311; O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994).
To establish the prejudice prong, petitioner must show that absent his attorney's errors, there is a reasonable probability that the result of his trial would have been different. Lynott v. Story, 929 F.2d 228, 232 (6th Cir. 1991). "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the [ultimate] judgment." West, 73 F.3d at 84, quoting Strickland, 466 at 691, citing Smith v. Jago, 888 F.2d 399, 404-05 (6th Cir. 1989), cert. denied, 495 U.S. 961 (1990). "Counsel is constitutionally ineffective only if performance below professional standards caused the defendant to lose what he otherwise would probably have won." United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992), cert. denied, 508 U.S. 975 (1993), see also West v. Seabold, 73 F.3d at 84.
A defendant also is entitled to the effective assistance of counsel in his first appeal of right. Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir. 2003). Appellate counsel's performance is judged under the same standard for evaluating trial counsel's performance. Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir. 2003)
Ineffective assistance of counsel in a petition for habeas corpus review is a mixed question of law and fact. West v. Seabold, 73 F.3d at 84. This means that this Court will defer to the state court's findings of fact, 28 U.S.C. § 2254 (e)(1); will not defer to its legal conclusions as to Strickland's performance and prejudice components, since they present mixed questions of law and fact, see Rickman v. Bell, 131 F.3d 1150, 1153-54 (6th Cir. 1997), cert. denied, 523 U.S. 1133 (1998); but will bear in mind that "a federal court may not grant a writ of habeas corpus 'simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. ...