The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
Charles Montague, a life-sentenced inmate with the Tennessee Department of Correction, has filed this pro se application for a writ of habeas corpus, 28 U.S.C. § 2254, attacking the legality of his confinement.*fn1 There are several matters now pending, the first of which is petitioner's "objection" to an order issued by the magistrate judge, granting respondent's motion to late-file a motion to extend the time to answer, as well as the time-extension motion itself. [Doc. 46]. The Court will treat petitioner's objection as an appeal of the magistrate judge's order, which after careful consideration of the record, will be DISMISSED because petitioner has failed to show that the challenged order is "clearly erroneous or contrary to law."
28 U.S.C. § 636(b)(1)(A). The magistrate judge's order WILL BE AFFIRMED. [Doc. 43].
Petitioner has also moved for a determination of the status of his case and for a hearing on respondent's dispositive motions. The former motion will be GRANTED; the latter will be DENIED. [Docs. 55, 56].
The next motions are respondent's motions to dismiss or for judgment as a matter of law, which are supported by a brief and copies of the relevant state court record. [Docs. 47, 48, 10, 16, 49]. Petitioner opposes those motions. [Doc. 50]. For the following reasons, the Court will GRANT respondent's motions and DISMISS the petition. [Doc. 47].
In 1993, petitioner was convicted of first-degree murder by a jury in the Criminal Court for Washington County, Tennessee and sentenced to a life-term in prison. Petitioner was unsuccessful on direct appeal, State v. Montague, No. 03C01-9306-CR-00192, 1994 WL 652186 (Tenn. Crim. App. Nov. 21, 1994), perm. app. denied (Tenn. 1995); in petitioning for post-conviction relief, State v. Montague, No. E2000-00083-CCA-R3-PC, 2000 WL 949233 (Tenn. Crim. App. July 11, 2000), perm. app. denied (Tenn. Dec. 27, 2000);*fn2 and in obtaining state habeas corpus relief.
[Addendum No. 17, Montague v. State, E2002-0868-CCA-R3-PC (Tenn. Crim. App. Nov. 15, 2002 (unpublished order)]. He now brings this federal petition for a writ of habeas corpus, asserting, as grounds for relief, claims of ineffective assistance of counsel, insufficient evidence, an invalid confession, judicial bias, evidentiary errors on the part of the trial court, improper jury instructions, an invalid indictment, and prosecutorial misconduct.
The following factual summary is taken from the state appellate court's opinion during petitioner's direct review:
On May 4, 1992, the victim, Donnie McMillian, was found lying on the floor of a Johnson City apartment shot to death. An investigation ensued. Police learned that defendant and a friend, Jerry Jackson, met at about 10:30 that morning and went to an area in Johnson City known as "The Strip." The defendant, who wore a black sweat suit with red stripes, drove Jackson's Firebird automobile. They drank beer and visited with others for a time and then left to search for the victim at the Johnson Inn. Unable to find him, they returned to "The Strip." A few days earlier, the defendant had told Jackson that the victim owed him some money and that "if he didn't pay him he was going to take him out."
At about 6:00 or 6:30 P.M., the two men returned to the Johnson Inn still in search of the victim. While there, they spoke with the victim's girlfriend, Mary Latham, who directed them to a local bar called Julian's. The defendant found the victim there and asked about the money, but learned that the victim had only $25.00-apparently not enough to pay his debt.
At trial, Jackson testified that the defendant invited the victim and a fourth man, Vincent Kyle, to get into their car. Because the defendant said he needed to get something out of a locker there, he drove all of the men to the Johnson City Bus Station. When Kyle asked the defendant if he was getting a gun, the defendant only smiled in response.
The defendant found that the bus station door he attempted to enter was locked and returned to the vehicle without going inside. At 8:30 P.M., the defendant dropped Jackson off at a rooming house, telling him he would pick him up the following morning. Yet he failed to show. Later, when Jackson took back possession of the car, he noticed what looked like blood on the interior. When he asked about the stain, the defendant answered that a child had spilled "chocolate or something." Kyle testified that he had gone to the bus station with the defendant on at least one earlier occasion. At that time, the defendant had picked up two guns, one of which was a .25 automatic and the other a .380 automatic. Because Kyle owed the defendant $75.00, he remembered a previous declaration made by the defendant that he intended to "make an example" out of the next person who "mess[ed] him over." Amy Campbell testified that at about 9:00 P.M. on the night of the murder she was driving in the area of the Liberty Bell Complex near Morningside Drive in Johnson City. A naked black male ran in front of her car, hit her front windshield, and pleaded for help. The man appeared to be bleeding. She then turned around and saw another black male apparently chasing the naked man. The second man told her to leave "or else." Ms. Campbell was unable to identify either of the two men but related that the second man was wearing a dark windbreaker-like jogging outfit.
Wallin Meyers testified that he was at his girlfriend's house in Johnson City on the night of the murder when he heard what he believed to be a gunshot. Shortly thereafter, he and his girlfriend drove through their neighborhood where they saw a naked black male being chased by another black man. The second man was wearing "some sort of jump suit with red stripes on it." Meyers saw the naked man run toward a residence and bang on the door and observed the second man catch up, force the naked man into the yard, and pull him to the ground. Meyers saw the clothed, second man shoot twice. After the shots, the naked man ran to another residence and kicked his way in through a glass door.
Witness Sarah Funkhouser testified that she lived at 806 Morningside Drive. At about 9:00 P.M. she heard what she thought were two firecrackers. "[T]he next thing [she] knew ... this naked man [was] kicking his way into [her] apartment" through the glass door. Before the man could get the bigger door closed, a second man came into the apartment and the two men began fighting. As Ms. Funkhouser went to the kitchen to call 911, she saw the second man with a gun in his hand. After the two men fell behind the couch, she heard a shot and ran out of the apartment. When she looked back, the second man was kneeling in her yard. She could not remember what he was wearing, other than possibly a baseball cap.
At 9:35 P.M., Investigator Angelio Dalpiaz arrived at 806 Morning-side Drive, Apt. 8. He found the naked, bloody victim lying face down on the floor of the apartment. The room was in complete disarray and there was blood on the wall. The investigator discovered one live bullet on the concrete pad at the front door, two shell casings, and one spent bullet in the apartment. All were Winchester .380 automatic. He also discovered a key and a white Bic lighter. Next, Investigator Dalpiaz went to 800 Morningside Drive where he found another spent cartridge on the front concrete pad, a hole in the front door, and a spent bullet on the other side of the front door. Both were Winchester .380 automatic.
During the course of the investigation, police determined that the key they had discovered belonged to Locker # 13 at the Johnson City Bus Station. Some of the fingerprints taken from the inside and outside of the locker matched those of the defendant. When the defendant was questioned on May 5th, officers observed that his right elbow was injured but not bleeding.
Jetta Hackler testified that she heard sirens on the evening of May 4th. The next day she found a wallet which contained the defendant's social security card and other forms of identification near the school, not far from where the victim was found. The wallet contained no credit cards or cash.
Greg Ricker, a detective with the Johnson City Police Department, participated in the defendant's arrest and the search of Angelia Darden's apartment. Ms. Darden was the defendant's girlfriend and he had been staying at her apartment. They found no dark sweat suit with red stripes. Ms. Darden, however, told them that the defendant owned such a sweat suit and had been wearing it on the date of the murder. Ms. Darden testified for the state that the defendant had left her apartment at about 10:00 A.M. on the date of the murder. When he returned at about 10:30 or 11:00 that night, he told her he had been fishing and out drinking with a couple of guys. He explained that he had hurt his arm when he fell out of the boat. Ms. Darden later heard the defendant leave the apartment for a few minutes and then return. When questioned by Detective Ricker, the defendant said he had arrived at Jerry Jackson's mother's house between 8:30 and 9:00 A.M. on the morning of the murder and had then driven Jackson's car to "The Strip." He admitted that he had looked for the victim at the Johnson Inn. When he did not find him, he returned to "The Strip." The defendant also admitted going to Julian's to see the victim. He claimed, however, that he had dropped the victim off at the old Dunbar School at about 5:00 P.M., just after he left Jerry Jackson at the rooming house. The defendant said he returned to his apartment in Abingdon between 7:00 and 8:00 P.M. and had not left again that evening. When asked about the sweat suit, he stated he did not own one like that and had been wearing black denim jeans, a black leather jacket, a t-shirt and tennis shoes on the day of the murder. He told officers that his wallet had been stolen off the dashboard of his car and explained that he had injured his elbow while riding a bicycle.
Dr. William McCormick, a forensic pathologist, examined the victim's body the day after the murder. He testified that the victim had a minimum of three gunshot wounds. A shot to the head was fatal. The victim had both alcohol and cocaine in his system.
Because the state's proof had established that the murderer was about 5'l0" to 6' tall, the defense presented proof that the defendant was only 5'7- 3/4". One defense witness testified that the victim "may have" borrowed his bicycle on the day of the murder. Another defense witness testified that the defendant owned an expensive bike and that it was at a shop being repaired.
Hugh Boring testified that he had taken the victim and the victim's girlfriend to the Johnson Inn at about 5:00 P.M. on the date of the murder. He and the victim then went to Julian's. While there, he said he saw Vincent Kyle, Robert Jackson, and Earl Williams and a red "Trans Am type car." According to Boring, Williams wore a dark jump suit with stripes. He said the defendant wore a t-shirt and blue jeans on the evening of the murder.
Tony Milhorn, the night custodian at the Liberty Bell School, also testified for the defense. At about 9:00 P.M. on May 4, he was on break talking to the night security guard when he saw a tall man run past the window wearing a maroon warmup suit.
State v. Montague, 1994 WL 652186, * 1 - 4.
III. The Dispositive Motions
In respondent's motion to dismiss, he maintains that all but five of petitioner's claims were not presented properly to the state courts, have been procedurally defaulted, and should be dismissed for that reason. In seeking summary judgment, respondent asserts that the remaining claims-those involving insufficient evidence, a suppression issue, judicial bias, an improper evidentiary ruling, and improper jury instructions, were adjudicated in state courts and that, under the deferential review standards for state court decisions in 28 U.S.C. § 2254, he is entitled to judgment as a matter of law on those five claims.
The discussion begins with the procedurally defaulted claims, which have been grouped together for organizational purposes.*fn3
A. Law of Procedural Default
Under 28 U.S.C. § 2254(b) (1), a state prisoner's petition for a writ of habeas corpus will not be granted unless he has exhausted his available state court remedies.
Exhaustion requires that a petitioner fairly present his federal claim first to the state courts in a procedural context where a merits review is likely. Castille v. Peoples, 489 U.S. 346, 351 (1989). A petitioner who has failed in this regard and who is now barred by a state procedural rule from returning with his claim to those courts, has met the technical requirements of exhaustion (i.e. there are no state remedies left to exhaust) and is deemed to have exhausted his state remedies, but to have done so by way of a procedural default. Coleman v. Thompson, 501 U.S. 722, 732 (1991). A petitioner who has actually presented his federal claim to the state courts, which have declined to address it due to his failure to meet a state procedural requirement, has committed a procedural default as well. See, e.g., Murray v. Carrier, 477 U.S. 478 (1986) (failure to raise claim on appeal); Reed v. Ross, 468 U.S. 1 (1984) (same).
For all types of procedural default, federal review is foreclosed, unless the habeas petitioner can show cause to excuse his failure to comply with the state procedural rule and actual prejudice resulting from the alleged constitutional violation. Coleman, 501 U.S. at 732. Cause can be shown where interference by state officials rendered compliance with the rule impracticable, where counsel gave ineffective assistance in violation of the prisoner's right under the Sixth Amendment, or where the legal or factual basis of a claim was not reasonably available at the time of the procedural default. Carrier, 477 U.S. at 488 and 492. To show prejudice, a petitioner must establish that the errors "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original).
With these principles in mind, the Court turns to those claims which respondent contends have been procedurally defaulted.
B. The Procedurally Defaulted Claims
1. Trial and appellate counsel rendered ineffective assistance by
*** failing to assert or raise on appeal a defense of voluntary intoxication to negate the intent element of first degree murder ...