The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
In1996, Donnie W. Foulkes was convicted of second-degree murder by a jury in the Criminal Court for Greene County, Tennessee and, for this offense, was sentenced to twenty-five years imprisonment. Petitioner now brings this pro se application for a writ of habeas corpus under 28 U.S.C. § 2254, challenging the legality of his confinement because of that conviction.
As grounds for relief, petitioner claims: 1) that his attorney gave him ineffective assistance on direct appeal and 2) that his sentence violates his right to a jury trial under the Sixth Amendment. Respondent Howard Carlton, Warden of the Northeast Correctional Complex and petitioner's custodian, has moved for judgment as a matter of law, offering in support a brief, the state-court opinions on direct and post-conviction review, and the transcript of the post-conviction hearing. [Docs. 7 - 9]. Petitioner opposes the motion.
Respondent argues, in his motion, that petitioner is not entitled to relief from the state court decisions rejecting his claims on the merits, under the deferential standards of review in 28 U.S.C. § 2254 . The Court agrees with respondent and will dismiss this case on that basis.
Following petitioner's December, 1996 conviction and sentencing, his attorney filed a motion for a new trial and, later, an amended motion. The motion was denied and petitioner, now represented by a different attorney, filed a direct appeal, raising sentencing claims only. Shortly thereafter, the Tennessee Court of Criminal Appeals denied his appeal, and, on May 12, 1999, petitioner sought post-conviction relief in the trial court. The trial court dismissed the petition, but the state appellate court found merit in petitioner's claim that he had been denied his right to appeal to the Tennessee Supreme Court. This finding was based on the fact that his attorney had neither moved to withdraw nor sought permission to appeal following the appellate court's decision on direct review. To permit petitioner to seek the review which he was denied by virtue of his attorney's inaction, the state appeals court vacated its prior order dismissing the direct appeal and reentered it to permit petitioner to seek second-tier review. The state appellate court then dismissed the post-conviction petition without prejudice.
Petitioner's application for permission to appeal to the state's highest court was unsuccessful, see State v. Foulks, 1998 WL 481040 (Tenn. Crim. App. Aug. 17, 1998), perm. to app. den., (Tenn. 2001), and he turned once more to the trial court, seeking post-conviction relief. This time, his post-conviction pleading was dismissed as a second petition, which Tennessee law prohibits, see Tenn. Code Ann. § 40-30-102(c), and he again appealed the dismissal. Observing that the earlier post-conviction petition had been dismissed without prejudice to the filing of the subsequent petition, the state appellate court granted the appeal. Foulks v. State, 2002 WL 31258012 (Tenn. Crim. App. Oct. 9, 2002).
The petition was remanded and an amended petition was filed. After an evidentiary hearing, the trial court dismissed the post-conviction case, the dismissal was affirmed on appeal, and the Tennessee Supreme Court declined further review. Foulks v. State, 2006 WL 1097489 (Tenn. Crim. App. Apr. 7, 2006), perm. to app. den., (Tenn. 2006).
Petitioner also filed a pro se state petition for a writ of habeas corpus in 2005, arguing that his sentence was illegal because the judgment form was marked improperly that he must serve "100%" of his sentence. Relief was denied by the trial court and that decision was affirmed on appeal. Foulks v. Carlton, 2007 WL 674628 (Tenn. Crim. App. Mar. 6, 2007).
In 2006, during the pendency of the state habeas corpus proceedings, petitioner submitted this instant federal habeas corpus application.
On January 21, 1996, petitioner shot and killed his wife, Robin Foulks, with a shotgun while she was in bed at their home. Their three-year-old son, who was in the bed with his mother when the shooting occurred, attempted to stop her bleeding. Several hours passed before she and the child were discovered. Thereafter, petitioner was convicted of second-degree murder in ...