United States District Court, M.D. Tennessee, Nashville Division
KEVIN H. SHARP, Chief District Judge.
Petitioner Larry Wayne Webb, a state prisoner incarcerated at the Northwest Correctional Complex in Tiptonville, Tennessee, filed a pro se petition under 28 U.S.C. § 2254 for the writ of habeas corpus. (ECF No. 1.) The respondent filed an answer in opposition to the petition (ECF No. 13), along with a complete copy of the underlying state-court record. The petitioner then filed a reply brief (ECF No. 16), along with a motion to alter or amend (ECF No. 17) and a memorandum of supplemental authority (ECF No. 18). The habeas petition is ripe for review, and this Court has jurisdiction. 28 U.S.C. § 2241(d).
The Court will grant the motion to alter or amend, in which the petitioner seeks to amend his habeas petition to assert that the procedural default of any claims of ineffective assistance of trial counsel raised in his petition should be excused by the ineffective assistance of post-conviction counsel, pursuant to Martinez v. Ryan, 566 U.S. ___, 132 S.Ct. 1309, 1320 (2012), and Sutton v. Carpenter, 745 F.3d 787, 792 (6th Cir. 2014). Nonetheless, upon consideration of the entire record, the Court finds that the petitioner is not entitled to relief on the grounds asserted. Mr. Webb's habeas petition will be denied and this matter dismissed.
I. PROCEDURAL BACKGROUND
On April 12, 2010, the petitioner was found guilty by a Davidson County jury of one count of identity theft and one count of forgery in an amount over $1, 000. He was sentenced as a career offender to the mandatory minimum and maximum of twelve years' incarceration on each count, but the trial court ordered that the sentences be served concurrently. (Judgments, ECF No. 14-1, at 30-31.) The convictions and sentences were affirmed on direct appeal. State v. Webb (" Webb I "), No. M2010-02547-CCA-R3-CD (Tenn. Ct. Crim. App. March 7, 2012), perm. app. denied (Tenn. Aug. 15, 2012). On October 5, 2012, the petitioner, through counsel, filed a petition for post-conviction relief in the state trial court. (ECF No. 14-13, at 24-36.) He also filed a "Pre-Hearing Memorandum" in support of his petition for post-conviction relief (ECF No. 14-13, at 37-44) and a "Supplemental Claim" (ECF No. 14-13, at 46-47). After conducting a hearing at which the petitioner and his trial attorney testified, the trial court entered an order denying the petition. (ECF No. 14-13, at 51-68.) That decision was affirmed as well. Webb v. State (" Webb II "), No. M2013-00444-CCA-R3-PC, 2013 WL 6844107 (Tenn. Ct. Crim. App. Dec. 26, 2013), pet. rehear den. (Jan. 16, 2014), perm. app. denied (Tenn. June 25, 2014).
Webb filed his § 2254 petition in this Court on July 28, 2014. The respondent concedes that the petition is timely.
II. STATEMENT OF FACTS
The Tennessee Court of Criminal Appeals summarized the testimony presented during trial as follows:
This case arises from the Defendant signing the victim's signature on their jointly owned Corvette's title and selling the car without sharing the proceeds of the sale with the victim. Based on this conduct, a Davidson County grand jury indicted the Defendant for forgery in an amount over $1000 and identity theft. At the trial on the Defendant's charges, the parties presented the following evidence: Penny Holt, the victim, testified that the Defendant had been her fiance. The victim testified that, during their relationship, she and the Defendant jointly owned a house and a 1977 Stingray Corvette, and they shared in the expenses for the Corvette. Holt stated that she paid for the car insurance on the Corvette. The victim said that she drove the Corvette "[a]ll the time." The victim identified the original Tennessee certificate of title for the Corvette and her name on the title. The victim testified that, since receiving the original Tennessee certificate of title, she had kept the title in a safe deposit box.
In June or July 2008, the victim and the Defendant broke off their engagement.
Later that year, in early December, the victim had work done to her Chevrolet Lumina automobile. While her Lumina was in the repair shop, the victim went to retrieve the Corvette to drive and found it missing. The Defendant told the victim that he was having the brakes on the Corvette repaired in Goodlettsville. The victim testified that, because she and the Defendant were on "good terms" despite the break-up, she had no reason to doubt his explanation as to the location of the Corvette.
The victim identified a copy of the Tennessee certificate of title for the Corvette, which displayed her signature as "Penny Holt" transferring the title. The victim denied that the signature was hers and explained that, because there is another person named Penny Holt in Nashville, whenever the victim signs a document she signs her name "Penny H. Holt." The victim identified the signature as the Defendant's handwriting. The victim testified that she never gave anyone permission to sign the certificate of title on her behalf and that the Defendant never requested her permission to sell the Corvette. The victim said that she did not receive any money from the proceeds of this sale of the Corvette.
On cross-examination, the victim testified that she was not present when the Defendant purchased the Corvette, and that she did not contribute any money toward the purchase of the Corvette. Originally, the Corvette certificate of title was registered in Georgia. When the Defendant applied for a Tennessee certificate of title for the Corvette, he added the victim's name to the certificate of title. The victim identified her signature on the back of the Georgia certificate of title for the Corvette and the Defendant's handwriting where he wrote her name as one of the owners.
The victim agreed that she signed an affidavit when they registered the Corvette in Tennessee verifying that she and the Defendant were married. The victim explained that, even though they were not actually married yet, they were engaged, living together, and planned to be married soon, so she signed the affidavit in order to obtain the license tag for the Corvette.
The victim testified that, when she learned the Defendant had "given a car to the attorney, " she sought an arrest warrant for the Defendant based upon forgery. The victim agreed that she had not seen the copy of the Tennessee certificate of title the Defendant used to transfer the vehicle at that time, but she knew that she possessed the original title and had not signed any document to transfer or sell the Corvette. The victim agreed that the Defendant asked her for the Tennessee certificate of title "a couple of times" but that she never gave it to him. The victim agreed that, after she had sought a criminal warrant, the Corvette was sold, and the victim received "some" of the proceeds from that second sale.
The victim identified documents containing the Defendant's handwriting and signature and documents containing the victim's handwriting and signature.
Jeremy Gourley testified that he was an attorney and that the Defendant was a former client. Gourley said that the retainer fee for him to represent the Defendant was $4000, and the Defendant paid this sum by transferring title of a 1977 Corvette to Gourley. Gourley recalled that the certificate of title the Defendant gave him had two signatures transferring the title. Gourley identified the copy of the certificate of title and said that the signatures were on the Tennessee certificate of title when he received it, so he did not witness anyone signing the certificate of title. Gourley explained the fee arrangement as follows:
We had a retainer agreement where [the Defendant] was to pay me cash money. Instead of paying me cash money, he brought the car for me to hold for a period of days until he could come up with cash money and after a period of days the cash money did not appear. It wasn't paid on cash money. I was just given the car and the car title.
Gourley testified that the Defendant gave him the Tennessee certificate of title early in December 2008. Gourley said that, pursuant to an agreement with the victim, he sold the Corvette in July 2009 for $5500. Gourley split the proceeds of the sale, after any expenses he incurred, with the victim.
On cross-examination, Gourley agreed that, at the point he received the Corvette, he anticipated he would be paid in cash and that he would not keep the Corvette.
Ann Watkins, a Department of Revenue Supervisor, testified that the Department of Revenue is responsible for all duties related to vehicle title and registration. Watkins said that on December 5, 2008, the Defendant requested a duplicate certificate of title for the Corvette and provided "the original was lost" as the reason for his request. Watkins explained that when a duplicate certificate of title is issued, the word "duplicate" is printed on the certificate of title and the date of issuance reflects the date the duplicate was issued. Watkins identified the duplicate certificate of title issued to the Defendant on December 5, 2008.
Based upon this evidence, the jury convicted the Defendant of forgery in an amount over $1000 and identity theft.
Webb I, 2012 Tenn. Crim. App. LEXIS 164, at *2-7.
At the sentencing hearing, the trial court made the following statement:
I, I understand kind of what Mr. Webb is saying to be honest with you about it. What he is basically saying is that he is not denying that all through his life at least his adult life he has done one thing after another that was criminal in terms of thefts and forgeries and any other thing like that, you know. He does not deny that.
What has got him so upset I think having heard this case and this case here of all of the cases that he has ever had was probably the most unusual way that he ends up going before a jury and gets convicted under all of the circumstances. It was, I won't use the word bizarre but it was unusual really when you have got a situation where this Corvette that apparently he and Ms. Holt sort of had a joint interest in ends up being the source of his potentially most serious conviction in terms of the sentence that he would get on all of these different other things that he has been involved in, which he does not deny.
It was unusual that Mr. Gourley came in and testified and ended up saying to the jury and the jury heard it all that he got part of his fee out of splitting the money with Ms. Holt over this Corvette and it is just the whole thing was a little bit unusual.
So, I am not saying that, that this man is without some problem all through his life and I am not saying that the jury did not give fair consideration and under the law and under the circumstance return their verdict, but it is a case that has some unusual circumstances leading up to how he ended up getting charged, tried and convicted by a jury, so I am going to look at it all and I will be fair to everyone in here and I don't know, but what is always best is in the eye of the beholder sometimes, but I heard the case and it was a little different without any doubt.
(Sentencing Hr'g Tr., ECF No. 14-4, at 48-49.)
The court subsequently entered a sentencing order that specifically took note of the petitioner's statement that he was "unable to tell his side of the story to the jury because his testimony could have been cross-examined by the State using his excessive criminal history of fraudulent offenses, thereby prejudicing him before the jury." (Sentencing Order 3, ECF No. 14-1, at 25.) The court, however, found that it had no discretion to mitigate the petitioner's sentence from the twelve-year statutory minimum for a Class D felony under Range III. Although the state argued strenuously for consecutive sentencing based on the petitioner's criminal history, the court ordered that the sentences be served concurrently, based in large part upon the petitioner's testimony at the sentencing hearing and the court's recognition of the unusual circumstances presented by this case. ( Id. at 28-29.)
After the conviction became final, the petitioner sought post-conviction relief. The Tennessee Court of Criminal Appeals summarized the testimony and evidence presented at the post-conviction hearing as follows:
At the post-conviction hearing, Jennifer Heaster, the Petitioner's sister, testified that she lived in Ridgetop, Tennessee, in April 2010 when the Petitioner's trial occurred. She said that no one contacted her or subpoenaed her but that if she had been called as a trial witness, she would have been available. She said the Petitioner bought the Corvette between April and June 2005. She said he brought the Corvette and a truck to her house in September 2005 to park the vehicles on her six-acre property for safekeeping.
Ms. Heaster testified that the Corvette remained at her house until the Petitioner wrecked his truck in January 2006. She said that the Petitioner returned the Corvette to her property in June or July 2006 and that it remained there until the Petitioner and Penny Holt purchased a house with a garage in June 2007. She said Ms. Holt and the Petitioner were dating but did not know how long they had been dating. She said that to her knowledge, Ms. Holt never had "anything to do" with or any ownership interest in the Corvette before June 2007. She said Ms. Holt never came to her house to borrow the Corvette. She identified photographs of the truck with body damage and the Corvette. She said a photograph of the Corvette with a Georgia license plate was taken at her house on November 1, 2005.
On cross-examination, Ms. Heaster testified that she was unaware of the Petitioner's trial or anyone trying to take the Petitioner's car. She said she first heard about the post-conviction case when an investigator contacted her. She said the Corvette never returned to her property after June 2007, nor had she seen the Petitioner or Ms. Holt driving it after June 2007. She was unaware Ms. Holt claimed to have an ownership interest in the car.
Trial counsel testified that he represented the Petitioner in general sessions court and at the trial. He said that after hearing some of the trial testimony, he contacted a friend at the Department of Safety or the court clerk's office and had documents faxed because he did not have the documents with him. He thought one of the documents, a title application submitted by Ms. Holt, was used as a trial exhibit. He identified faxed documents reflecting that they were faxed on "4-12 at 10:03." He said that before receiving the fax, he had not seen Ms. Holt's affidavit stating that she was married to the Petitioner. He knew the Petitioner and Ms. Holt were never married but did not know about the document. He could not recall Ms. Holt's exact words but said she testified that she signed the affidavit in order to have the car titled jointly to the Petitioner and her. He said the title was issued in their names on July 12, 2007.
Counsel testified that due to his receiving the affidavit at 10:00 a.m. on the day of the trial, he was unable to research whether Ms. Holt should have received a title for the car. He said he did not know before the trial that an issue existed regarding whether Ms. Holt and the Petitioner were married. He acknowledged he did not make a pretrial motion to exclude the document or object when it was admitted into evidence showing Ms. Holt's ownership of the car. He agreed he did not have time to understand the document's importance and said he was familiar with the statute stating that a title should not be issued based upon fraudulent information. He said that he knew once he received the document Ms. Holt made a false statement and that he "tried to make as much hay about that as possible." He agreed he did not request a continuance after receiving the information.
Counsel testified that he did not talk to Frank Harris before the trial. He recalled that the Petitioner may have called Mr. Harris on the day of the trial to see if Mr. Harris could attend the trial but was unsure if he spoke with Mr. Harris. He said he knew the Petitioner was the only person involved in purchasing the car. He said that the car was purchased in another state and that the previous title reflected that Ms. Holt added her name on a different date in different handwriting. He said the Petitioner stated that Mr. Harris could testify that Ms. Holt was not involved in purchasing the car. He acknowledged that although Mr. Harris was an important witness, he did not subpoena Mr. Harris. He understood that Mr. Harris was going to appear voluntarily for the trial but that Mr. Harris had a health issue that prevented him from attending. He acknowledged he did not request a continuance in order for Mr. Harris to be present.
Counsel testified that he did not think he spoke with Ms. Heaster before the trial. He said that he may have met her at his office but that they never discussed the car's ownership. He said that although a "serious time lapse" existed between the Petitioner's purchase of the car and Ms. Holt's involvement, he was unable to demonstrate it at the trial. He said that although the Petitioner did not testify at the trial, the Petitioner told him that the Petitioner had the car for over a year before he began dating Ms. Holt.
Counsel testified that the Petitioner always maintained that he did not sign Ms. Holt's name to a duplicate title. He said that the Petitioner claimed he left the title at Ms. Holt's business for her to sign because she was not there and that when he returned the next day, her name was signed. He said the Petitioner assumed Ms. Holt signed the document. He agreed he did not consult a handwriting expert to examine the signature, although the State's theory was that the Petitioner signed Ms. Holt's name to the document. He agreed Ms. Holt stated in cross-examination that she knew the Petitioner signed her name on the document. He did not think any proof contradicted Ms. Holt's testimony in this regard and said the Petitioner did not testify because of his prior criminal record. He said Ms. Holt testified that she never signed her name without her middle initial, H. He agreed that the signature on the title did not include a middle initial.
Counsel testified that the Petitioner came to his office multiple times on Sundays. Counsel said he was in court Monday through Friday, did not work on Saturday, and had client appointments on Sundays. He said that he also saw clients on Sundays who dropped by without an appointment and that he stayed until everyone had been seen. He said the Petitioner was familiar with his office protocol. He thought he and the Petitioner met the week before the trial but said the Petitioner did not have an appointment on the Sunday before the trial. He thought that the Petitioner came to his office on the Sunday before the trial but that for some reason, they did not meet. He said other people may have been waiting. He acknowledged providing post-conviction counsel with a computer disk of his file and said it did not contain any notes to show that he reviewed the defense with the Petitioner. He acknowledged he did not make a motion for judgment of acquittal based upon the statute regarding titles not being issued based upon fraudulent statements.
On cross-examination, counsel testified that he represented the Petitioner in other cases, as well. He said one of the other cases involved Mr. Harris and one was a domestic matter. He agreed the Petitioner was on bond and was able to meet with him at his office. He could not estimate the number of hours he spent with the Petitioner discussing the cases. He said that the Petitioner was very concerned about his legal matters and that he never stopped the Petitioner from coming to his office. He said that the Petitioner obtained new counsel at some point and that he did not represent the Petitioner through the conclusion of the other cases.
Counsel testified that he was unsure whether he received Ms. Holt's affidavit in a supplemental discovery response but said it was possible. He identified a supplemental discovery response containing Department of Revenue documents. He said the discovery response listed his address and had a certificate of service dated August 11, 2009. He identified Ms. Holt's affidavit as one of the Department of Revenue documents. He agreed the trial was about eight months after August 11, 2009. He agreed that he initially wanted to use the affidavit to show Ms. Holt was dishonest. He agreed he cross-examined Ms. Holt about this and argued it in his closing argument. He agreed a Department of Revenue official testified that the title Ms. Holt kept in her safe deposit box was a valid Tennessee title despite the false statement in the affidavit. He said that in his opinion, the title was valid.
Counsel testified that Ms. Holt admitted on cross-examination that she was not involved in the purchase of the car and that she did not provide any money for the purchase or for a one-half ownership interest. He agreed that no one disputed at the trial that the Petitioner was the purchaser. He did not think the Petitioner and Ms. Holt knew each other when the Petitioner bought the car. He believed Ms. Holt testified that she did not know who wrote her name on the Georgia title.
Counsel testified that forgery could consist of actions other than writing someone else's name on a document. He agreed that if the Petitioner had someone else write Ms. Holt's name on the title and then used the title as if the signature were valid, forgery existed.
Counsel testified that at the trial, Ms. Holt denied the signature on the title was hers or that she gave anyone permission to sign her name. He said she stated she had the original title and would not have signed a duplicate title. He said that Ms. Holt's testimony seemed inconsistent about whether the Petitioner signed her name or if she did not know who signed it and that he "kept on pushing the point" in cross-examination. He said the State's argument was that although the Petitioner may not have written Ms. Holt's name, he knew she had not signed her name when he used the document.
Counsel testified that the Petitioner, a career offender, faced up to twenty-four years if he received two consecutive twelve-year sentences for his Class D felony convictions. He noted, though, that the prosecutor was under the impression the Defendant was convicted of a Class D felony and a Class E felony, which had a possible effective sentence of eighteen years. He said the trial court did not impose consecutive sentences. He said he argued for probation specifically and alternative sentencing generally. He said he did not specifically request community corrections or split confinement.
On redirect examination, counsel acknowledged that he did not cross-examine Ms. Holt about a signature she identified as hers in which she had not signed her middle initial. On recross-examination, he agreed the State presented several of Ms. Holt's signatures on checks and documents for the jury's use in comparing to the signature on the title.
The parties stipulated that Jane Eakes, the Petitioner's handwriting expert, would testify that the Petitioner did not write Ms. Holt's signature on the title. The affidavit of Frank Harris was received by stipulation. The affidavit stated that Mr. Harris had a pre-existing business relationship with the Petitioner before selling a Corvette to him. Mr. Harris stated that he would have been available to testify at the Petitioner's trial if he had been called. He said, though, the Petitioner's attorney never contacted him about the circumstances of the Corvette transaction or inquired whether he would be available to testify at the trial. Mr. Harris said he never received a subpoena for the trial. He stated that had he been called to testify, he would have said that the Petitioner purchased the Corvette in 2005 for $13, 500, which he paid in installments over a couple of months. Mr. Harris stated that he hand-delivered the Georgia title to the Petitioner. He said he had no knowledge that the Petitioner dated Ms. Holt at the time the Petitioner bought the Corvette. Mr. Harris stated that although he testified for the State at the Petitioner's sentencing hearing, the testimony concerned a business dispute in which he sought criminal charges against the Petitioner and that he had since determined that the Petitioner did nothing wrong. He said the Petitioner's conviction related to the other business matter was reversed. Counsel's file regarding the Petitioner's conviction proceedings was received as an exhibit.
Webb II, 2013 WL 6844107, at *1-5
III. ISSUES PRESENTED FOR REVIEW
Mr. Webb makes the following claims in his habeas petition:
(1) That the trial court violated his rights under the Fifth and Fourteenth Amendments to the United States Constitution by admitting into evidence at his state criminal trial the 2007 ...