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Troglin v. Westbrooks

United States District Court, E.D. Tennessee, Chattanooga Division

November 7, 2014



CURTIS L. COLLIER, District Judge.

Acting pro se, Nelson Troglin ("Troglin" or "Petitioner"), an inmate confined in the Bledsoe County Correctional Complex, brings this petition for a writ of habeas corpus, 28 U.S.C. § 2254, challenging the legality of his confinement under a 2000 Bledsoe County, Tennessee judgment (Court File No. 1). A jury convicted Troglin of second degree murder, and, for this offense, he is serving a prison sentence of twenty-three years. Warden Bruce Westbooks has filed an answer to the petition, which is supported by copies of the state court record (Court File Nos. 8 and 9, Addenda 1-4). Petitioner has replied to the Warden's answer (Court File No. 15), and thus the case is ripe for disposition.


Petitioner's judgment was affirmed on direct appeal by the Tennessee Court of Criminal Appeals ("TCCA") and no further direct review was sought. State v. Trolin, No. E2000-00251-CCA-R3-CD, 2002 WL 385800 (Tenn. Crim. App. Mar. 12, 2001). Troglin next applied for state post-conviction relief, but the trial court denied his petition. Troglin appealed the post-conviction court's decision, but likewise was unsuccessful in obtaining relief in either the TCCA or the Tennessee Supreme Court. Troglin v. State, No. E2010-01041-CCA-MR3-PC, 2011 WL 2982640 (Tenn. Crim. App. July 22, 2011), perm. to app. denied (Tenn. 2011). There followed this timely habeas corpus application.


The factual recitation is taken from the TCCA's opinion on appeal of petitioner's post-conviction case.

On June 15, 1998, Richard Stafford found the victim's lifeless body in the victim's bedroom sometime after 6:30 p.m. The victim had been shot four times with a 9mm rifle. The murder weapon was never found. One of the bullets remained in the victim's body, while the other three bullets exited the body and were found in various places in the victim's bedroom. Four expended 9mm Winchester Luger hulls were found in the victim's bedroom. Officers found more than $400 in the victim's left front pocket. The victim's right front pocket was empty and "had been pulled out exposing the pocket area." In the investigation of the victim's death, the Petitioner was developed as a potential suspect.
On Saturday, June 13, the Petitioner was at Mr. Holland's game room with the victim, Richard Wooden, and Dennis Johnson. The Petitioner asked Mr. Wooden to step into the hallway, where the Petitioner asked Mr. Wooden for a gun and told him that he wanted to steal the victim's money. Mr. Wooden told the Petitioner that he should just ask the victim for the money because the victim would likely give him the money. After that conversation, the Petitioner called Mr. Wooden into the hallway two more times and asked him if he could use his gun. Mr. Wooden refused. The Petitioner suggested that Mr. Wooden could just offer to take the victim home in order to allow the Petitioner to stop the car and steal the victim's money. In furtherance of this plan, the Petitioner offered Mr. Wooden half of the victim's money. Mr. Wooden again refused. The Petitioner told Mr. Wooden that he was going to kill the victim and take his money.
The Petitioner purchased a 9mm semiautomatic Marlin from Norman Blaylock on Sunday, June 14. Mr. Blaylock gave the Petitioner ammunition, and the Petitioner test-fired the weapon, leaving six expended hulls on the Blaylock property. The Petitioner attempted to sell the 9mm weapon to Bob and Helen Smith later that day. While on their property, he shot the weapon into the air, leaving two expended hulls on the Smith property. Agent Steve Scott of the Tennessee Bureau of Investigation (TBI) examined the four hulls found at the victim's residence, the six hulls found at the Blaylock residence, and the two hulls found at the Smith residence. He determined that all 12 of the hulls had been fired from the same 9mm weapon.
At trial, Roger Hodge testified that the Petitioner came into his store, Nyla's Place, on Monday, June 15 and purchased a box of 9mm Winchester ammunition for $20. Nyla Hodge confirmed that the Petitioner came to their store that day and said that the Petitioner was there for approximately 15 minutes between 5:00 and 5:30 p.m. Bob Swafford said that he was at Nyla's Place on June 15 at approximately 5:00 p.m. when the Petitioner was talking to Roger Hodge about ammunition.
Billy Frank Wheeler testified that he last saw the victim at the post office at approximately 4:30 p.m. on Monday, June 15. Nannie Lou Troglin, the victim's half-sister, testified that on that day, the victim had visited her and showed her that he had a large sum of money. Ms. Troglin stated that she saw the Petitioner's car at the victim's house later that afternoon. Mike Stafford and Virginia Wright, who lived down the street from the victim, testified that they saw the Petitioner's car at the victim's house after 5:00 p.m. Ron Sullivan and Christy Luttrell testified that they, along with Richard Stafford, were at the Stafford residence on that day and that as they were leaving to take a car to get the tire fixed, they saw the Petitioner's car at the victim's house after 5:00 p.m. They also testified that they saw the Petitioner's car at the victim's residence on their return trip to the Stafford home.
Richard Stafford said that he went with Ron Sullivan and Christy Luttrell to get Ron Sullivan's tire fixed. He said that he saw the Petitioner's car at the victim's residence on their way out and on the return trip. He said that once they returned, he walked to the victim's residence with Senora Joyner sometime after 6:30 p.m. He said that the Petitioner's car was no longer there and that he and Senora Joyner were at the residence for a little while before he discovered the victim's body in the bedroom.
Ted Fugate testified that he bought a truck from the victim for $1, 500 on Saturday, June 13. He said that the week before the victim died, the Petitioner lost approximately $1, 500 in a game at Mr. Holland's game room. He said that on Monday, June 15, he was at Mr. Holland's game room when the Petitioner arrived. After everyone had just heard about the victim's death, the Petitioner laid some money on the table and said he wanted to contribute the money for flowers. Richard Wooden testified that when the Petitioner laid the money down, the Petitioner said, "There's the s-n of a b-h some flowers."

Troglin, 2011 WL 2982640, at *1-2.

On these facts, petitioner was charged with first degree murder, but the jury convicted him of the lesser-included offense of second degree murder.


Under the review standards set forth in the Antiterrorism and Effective Death Penalty Act (AEDPA), codified in 28 U.S.C. §§ 2241, et seq., a court considering a habeas claim must defer to any decision by a state court concerning the claim unless the state court's judgment (1) "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 (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C.A. § 2254(d)(1)-(2).

A state court's decision is "contrary to" federal law when it arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or resolves a case differently on a set of facts which cannot be distinguished materially from those upon which the precedent was decided. Williams v. Taylor, 529 U.S. 362, 413 (2000). Under the "unreasonable application" prong of § 2254(d)(1), the relevant inquiry is whether the state court decision identifies the legal rule in Supreme Court cases which governs the issue but unreasonably applies the principle to the particular facts of the case. Id. at 407. The habeas court is to determine only whether the state court's decision is objectively reasonable, not whether, in the habeas court's view, it is incorrect or wrong. Id. at 411.

This is a high standard to satisfy. Montgomery v. Bobby, 654 F.3d 668, 676 (6th Cir. 2011) (noting that "§ 2254(d), as amended by AEDPA, is a purposefully demanding standard... because it was meant to be'") (quoting Harrington v. Richter, 131 S.Ct. 770, 786 (2011)). Further, findings of fact which are sustained by the record are entitled to a presumption of correctness-a presumption which may be rebutted only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).


The § 2254 petition for habeas corpus raises three main grounds for relief: (1) insufficient evidence, (2) several instances of ineffective assistance of counsel; and (3) denial of a fair trial and due process of law. The Warden argues, in his answer, that Troglin is not entitled to relief with regard to the state court decisions rejecting his claims on the merits, given the deferential standards of review set forth in 28 U.S.C. § 2254. With respect to other claims, the Warden suggests either they were waived in state court and are now procedurally barred from habeas corpus review or are not cognizable federal claims in the first place.

Petitioner takes a contrary position, maintaining, in his reply to the Warden's answer, deference is unwarranted since the state court decisions on his claims fail one or more of the tests in § 2254(d); Tennessee's "waiver" statute is ambiguous and the state court's finding of waiver violates his due process rights; and errors in state post-conviction proceedings which rise to the level of due process violations are cognizable habeas corpus claims.

The Court agrees with respondent Warden concerning the suitability of habeas corpus relief and, for the reasons which follow, will DENY the petition and DISMISS this case. Troglin's grounds will be discussed in the order in which they were presented.

A. Insufficient Evidence (Pet., Ground One)

Petitioner points to gaps in the evidence, which, he insists, show the proof is not sufficient to sustain his conviction of second degree murder. Troglin first maintains there was no conclusive proof, including physical evidence, demonstrating he possessed or fired a 9mm rifle. Next, petitioner contends testimony of witnesses who stated they observed his car at the scene of the crime did not prove he committed the offense. Likewise, Troglin's personal enemy, who was also a convicted felon, gave suspect and inconclusive testimony, in which he stated petitioner desired to rob the victim.

1. The Law

The controlling rule for resolving a claim of insufficient evidence was established in Jackson v. Virginia, 443 U.S. 307 (1979). See Gall v. Parker, 231 F.3rd 265, 287-88 (6th Cir. 2000) ( Jackson is the governing precedent for claims of insufficient evidence.). There, the Supreme Court held evidence, when viewed in the light most favorable to the prosecution, is sufficient if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 319. Circumstantial evidence which convinces a rational jury of each element of the offense beyond a reasonable doubt is sufficient to sustain a conviction. Ibid. The evidence, however, need not be such as to exclude every reasonable hypothesis other than that of guilt. Id. at 317 n. 9.

Resolving conflicts in testimony, weighing the evidence, and drawing reasonable inferences from the facts lies within the domain of the trier of fact. Id. at 319. A habeas court reviewing an insufficient-evidence claim must apply two levels of deference. Parker v. Renico, 506 F.3d 444, 448 (6th Cir. 2007). Under Jackson, deference is owed to the factfinder's verdict, "with explicit reference to the substantive elements of the criminal offense as defined by state law." Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008) (quoting Jackson, 443 U.S. at 324 n.16). Under AEDPA, deference is also owed to the state court's consideration of the trier-of-fact's verdict. Ergo, petitioner "bears a heavy burden" when insufficiency of the evidence is claimed. United States v. Vannerson, 786 F.2d 221, 225 (6th Cir. 1986).

2. Analysis

The TCCA began its discussion of petitioner's claim by summarizing the evidence which sustained his conviction. There was proof the victim was killed with a 9mm firearm. Though Troglin denied ever owning a 9mm weapon or buying ammunition for such a weapon, three witnesses offered testimony which contradicted Toglin's statement. There was also evidence showing the Winchester 9mm cartridges found in the room with the victim's body were shot from the 9mm firearm petitioner possessed, which were similar to the type of cartridges petitioner bought earlier that day and the size of bullets which killed the victim.

Further, petitioner provided to law enforcement officials an accounting of his day's activities, but testimony of various witnesses contradicted his accounting. Missing from Troglin's account was any mention of a visit to the victim's residence, despite six witnesses testifying to seeing Troglin's vehicle parked at the victim's residence. The proof also included evidence contrary to the testimony of the six witnesses, in the form of testimony by four members of petitioner's family (two nieces, a nephew, and a sister), who stated petitioner was asleep on his sister's sofa during the approximate period his car was reported to have been seen at the victim's residence.

Among other evidence adduced, through the testimony of a witness, was that petitioner had expressed a desire, two days prior to the victim's actual killing (and, most likely, robbery), to rob and kill the victim. Finally, the proof showed the killer aimed a weapon and fired four bullets into the victim's body. This conduct, according to the TCCA, was reasonably certain to kill the victim and fell within the definition of "knowing" conduct.

The TCCA then defined the offense of second degree murder as the unlawful, knowing killing of a victim. Troglin, 2002 WL 385800, at *8 (citing to Tenn. Code Ann. § 39-13-210(a)(1) (1997)). The state court explained 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." Id. (citing to Tenn. Code Ann. § 39-11-302(b)).

The TCCA recognized, where the sufficiency of the evidence is challenged, the relevant question is whether any rational trier of fact, viewing the evidence in the light most favorable to the State, could have found all the essential elements of the offense beyond a reasonable doubt, and it cited to Jackson as the source of this standard. Therefore, the decision of the TCCA was ...

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