United States District Court, E.D. Tennessee at Greeneville
TERRY D. SNEED, Petitioner,
DAVID SEXTON, Warden, Respondent.
J. RONNIE GREER, District Judge.
This is a pro se prisoner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed by Terry D. Sneed ("Sneed" or "Petitioner"), who is currently serving a sentence of 124 years with the Tennessee Department of Correction (Doc. 1). Sneed was indicted in Unicoi County on two counts of aiding and abetting aggravated rape and one count of aggravated rape and in Carter County for one count of aggravated robbery and one count of kidnapping and was convicted of all counts (Doc. 1, Pet.). Warden David Sexton has filed a response, arguing that relief is not warranted on any of Sneed's claims and, in support of his arguments, has submitted copies of the state court record (Docs. 12 and 13). For reasons which appear below, this petition will be DENIED.
I. PROCEDURAL HISTORY
On November 5, 1998, Petitioner's convictions were affirmed on direct appeal by the Tennessee Court of Criminal Appeals (hereinafter "TCCA"). State v. Sneed, No. 03C01-9702-CR-00076, 1998 WL 783330 (Tenn. Crim. App. Nov. 5, 1998). On April 5, 1999, the Tennessee Supreme Court (hereinafter "TSC") denied his application for permission to appeal. Id. Petitioner did not file a petition for a writ of certiorari in the United States Supreme Court.
Petitioner's next challenge to his conviction was brought under the Tennessee Post-Conviction Procedure Act, by means of his filing, on March 15, 2000, a petition for post-conviction relief. Sneed v. State, No. E2010-00323-CCA-R3-PC, 2011 WL 862029, at *1 (Tenn. Crim. App. Mar. 14, 2011). After a substantial delay, much of which was attributed to Sneed, and an evidentiary hearing on the claims, the state post-conviction court denied the petition and the TCCA affirmed the denial. Id., 2011 WL 862029, at *1, *5. Petitioner's request for permission to appeal was likewise denied by the TSC.
There followed this instant § 2254 habeas corpus application.
II. FACTUAL BACKGROUND
The factual recitation is taken from the TCCA's opinion on direct appeal of Petitioner's post-conviction case.
The victim in this case was an employee at the Stop-In Market in Carter County, where she generally worked the night shift from eleven o'clock p.m. until seven o'clock a.m. On November 29, 1992 at approximately one-thirty a.m., shortly after the victim's co-worker left for the night, leaving the victim alone in the store, two males entered the market. The two men, who were captured on video surveillance tape, were armed with knives. They approached the victim and demanded that she get a bag and fill it with all the money in the cash register. The victim testified that both men threatened to kill her if she did not cooperate, and the victim acceded to their demands. The men then dragged her from the store and forced her into a car, where the co-defendant, Billy Joe Smith, shoved her head to the floorboard and held it there.
The victim testified that the Defendant drove the car to a cemetery. At the cemetery, the Defendant and Smith began drinking Mad Dog 20/20, which they also forced the victim to drink at one point during the night. Smith ordered the victim to remove her clothes. At that time, the Defendant stated, "Just kill her.... [G]et it over with. I'm sick of hearing her cry." Smith then raped the victim at knifepoint on the ground outside while the Defendant watched from the car. The victim testified that immediately after the rape, the Defendant stated, "Give her up to me, it's my turn. Let me have her.... Damn it, Billy Joe, you said if
I drove and did like you said that I could have her when you was done with her to do whatever I wanted to." The Defendant, armed with a knife, next raped the victim in the front seat of the car. He then attempted to force her to perform fellatio. The victim testified that when she refused, the Defendant said, "I'd love to kill you.... I can't wait to see your blood flow.... I'm a son of satan and it wouldn't bother me a bit. I ought to kill you.... I've put five women up there in that grave and it wouldn't bother me to make you number six.... I blew one bitch's brains out for screaming." After the rape, the victim was sobbing, and the victim testified that the Defendant threatened to "chop [her] up and fry [her] on the hood of the car" if she did not quiet down.
Shortly thereafter, the two men forced her to hold a cigarette lighter so that they could see to divide up the money that they had taken from the Stop-In Market. Smith then raped the victim a second time on the ground outside, while the Defendant again watched from the car. Throughout the night and early morning, the two men threatened numerous times to kill the victim, and each one told the victim that he had a gun. The victim also testified that she felt what she believed to be a gun under the back seat of the car while she was being held down on the floorboard.
After the third rape, the three got back into the car, at which point the Defendant asked Smith if he could have a second turn at raping the victim. Smith refused. The victim testified that the three of them then sat in the car in silence for an hour or two so that Smith could "think." Finally, as the sun began to rise, Smith started the car and drove to the Roadway Inn in Johnson City, claiming that he and the Defendant would abduct the victim and have her help them rob banks. According to testimony of the victim, Smith said, "We're going to be Clyde and you'll be Bonnie."
When they arrived at the motel, Smith held a knife to the victim's back while the Defendant, leaning against the open door of the car, called to a motel employee in the parking lot to ask whether there were any vacant rooms. The employee refused them a room, citing their drunkenness, and while the Defendant was arguing with the employee, the victim slid out of the car and ran to the motel office. The employee later testified that he could identify the Defendant and Smith as the men he had seen that morning at the motel. The victim testified that while she was running to the motel office, she heard the men running and she heard one of them say, "Let's get the f__k out of here." The motel employee stated that the men were driving too fast for him to get a license tag number.
Upon reaching the motel office, the victim called 911 and summoned the police. The whole ordeal had lasted approximately seven hours. When the police arrived, she went with them to the Johnson City Police Department to give a statement detailing the events of the night. While at the police department, she identified not only the Defendant from a photo line-up, but also was shown and identified the car driven by the perpetrators on the night of the crime. At the Johnson City Hospital, she submitted to medical testing, which was later introduced at trial in the form of a rape kit.
Sneed v. State, 2011 WL 862029, at *1-2.
On these facts, a Unicoi County Criminal Court jury convicted Sneed of all charges alleged in the indictments.
Sneed's § 2254 petition for habeas corpus raises the following grounds for relief: multiple instances of ineffective assistance of counsel; a violation of his right to confrontation; insufficient evidence; unconstitutionally selected and impaneled grand and petit juries; an impermissible jury instruction; and an improper amendment to the indictment (Doc. 1). The Warden argues, in his answer, that Petitioner is not entitled to relief with regard to the state court decisions rejecting five of his grounds on the merits, given the deferential standards of review set forth in 28 U.S.C. § 2254. With respect to three remaining claims, the Warden maintains that they are barred from habeas corpus review due to Sneed's state procedural defaults.
The Court agrees with respondent Warden concerning Petitioner's entitlement to habeas corpus relief and, for the reasons which follow, will DENY the petition and DISMISS this case.
These claims have been organized into two categories for purposes of discussion. The first category encompasses the procedurally defaulted claims. The second category contains those claims which were adjudicated in the Tennessee courts.
A. Procedural Default
A state prisoner who petitions for habeas corpus relief must first exhaust his available state court remedies by presenting the same claim sought to be redressed in a federal habeas court to the state courts. 28 U.S.C. § 2254(b)(1). The exhaustion rule requires total exhaustion of state remedies, Rose v. Lundy, 455 U.S. 509 (1982) (emphasis added), meaning that a petitioner must have fairly presented each claim for disposition to all levels of appropriate state courts. Baldwin v. Reese, 541 U.S. 27, 29 (2004); O'Sullivan v. Boerckel, 526 U.S. 838, 845-47 (1999).
A prisoner who has failed to present a federal claim to the state courts and who is now barred by a state procedural rule from returning with his claim to those courts has committed a procedural default. Coleman v. Thompson, 501 U.S. 722, 732 (1991). Federal review of a procedurally defaulted claim 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. Id. Cause can be shown where interference by state officials has rendered compliance with the rule impracticable, where counsel rendered ineffective assistance in violation of the prisoner's right under the Sixth Amendment, or where the legal or factual basis of a claim is not reasonably available at the time of the procedural default. Murray v. Carrier, 477 U.S. 478, 488, 492 (1986). A petitioner demonstrates prejudice by establishing that the constitutional error "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).
1. Grand and Petit Jury Selection Claim (Ground Five)
2. Ineffective Assistance (Ground Six)
Sneed alleges, with respect to the jury-selection claim asserted as Ground Five in the petition, that the trial judge failed to follow an appropriate and mandatory procedure in selecting the petit jury, in that he drew, with one hand, slips of paper containing the names of potential jurors held in his other hand, when he should have drawn the names from a jury box. Another alleged trial court error is that the trial judge also allowed an individual to remain and serve on the petit jury, though Sneed had been charged with aggravated burglary and theft of the juror's father's home. The grand jury, so claims Petitioner, contained jurors who were related to the victims of Sneed's previous crimes or to the victim in the crimes being challenged in this habeas corpus petition.
Petitioner complains in Ground Six that counsel failed to address the issue of the existence of two different transcripts of his preliminary hearing. According to petitioner, the transcripts are inconsistent with respect to the victim's description of the number of perpetrators and with respect to the name, description and age of the victim.
Respondent asserts that neither of the above claims was offered to the state courts on direct review or in the post-conviction proceedings and that return to those courts with the claims is precluded by the Tennessee's post-conviction statute of limitations, as well as the statutory restrictions for filing successive state petitions.
Petitioner alleges, as cause, that his collateral review counsel was ineffective for failing to present, during the post-conviction appeal, any issue which the Court finds to have been procedurally defaulted (Doc. 1 p. 50). Petitioner's allegations do not supply cause. First of all, the jury-selection claim is one which is properly raised on direct appeal and not in a post-conviction proceeding. See Williams v. State, No. M2007-02070-CCA-R3-PC, 2008 WL 5272556, *7 (Tenn. Crim. App. Oct. 7, 2008), perm. to app. denied (Tenn. 2009) ("The petitioner had an opportunity to object to the racial makeup of the jury at trial and on direct appeal; however, he failed to make such objections. We hold that the petitioner has waived this issue and affirm the post-conviction court's order denying relief on this ground."). Thus, any attorney shortcoming in failing to raise the issue would have to be attributed to the lawyer who represented Petitioner in his direct appeal, not the one who represented him on collateral review.
Secondly, as Petitioner rightly recognizes, there is no right to counsel in a post-conviction proceeding and, thus, no right to the effective assistance of counsel. Coleman, 501 U.S. at 752; Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). And, generally, the ineffective assistance of counsel does not excuse a state procedural default. Coleman, 501 U.S. at 755. There is one limited equitable exception, as announced in Martinez v. Ryan, 132 S.Ct. 1309 (2012). Martinez holds that where state law requires ineffective-assistance claims to be raised during initial collateral review, post-conviction counsel's ineffective assistance excuses a procedural default of a substantial claim that trial counsel gave ineffective assistance. Martinez, 132 S.Ct. at 1320. However, by its very terms, the exception does not apply to a post-conviction appellate procedure-only to those errors in the " initial-review collateral proceeding." Wallace v. Sexton, No. 13-5331, 570 F.Appx. 443, 453 (6th Cir. 2014). Thus, any attorney shortcoming in the post-conviction appeal does not qualify as a Martinez exception to the required showing of cause.
Since Petitioner has failed to show cause to excuse the procedural default of these claims, ...