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Harrison v. Parris

United States District Court, M.D. Tennessee, Nashville Division

November 8, 2016

FREEMAN RAY HARRISON #477504, Petitioner,
v.
MICHAEL PARRIS, Respondent.

          MEMORANDUM

          WAVERLY D. CRENSHAW, JR., UNITED STATES DISTRICT JUDGE

         Petitioner Freeman Ray Harrison, a state prisoner serving an effective sentence of 20 years for two counts of aggravated sexual battery and one count of reckless endangerment, has filed a pro se petition under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. No. 1), along with a memorandum in support. (Doc. No. 2.) Respondent has filed an answer and relevant portions of the state court record. (Doc. Nos. 14, 19, 23.) Petitioner has filed a reply (Doc. No. 28), and this matter is fully briefed and ripe for review. For the reasons set forth below, the Petition will be denied.

         I. BACKGROUND AND PROCEDURAL HISTORY

         A Rutherford County jury convicted Petitioner on September 17, 2010, of two counts of aggravated sexual battery and one count of reckless endangerment. (Doc. No. 14-1, at 1.) On December 17, 2010, the trial court sentenced Petitioner to 10 years on each count of aggravated sexual battery, and 11 months 29 days for reckless endangerment. (Doc. No. 14-1, at 48-49, 52.) The aggravated sexual battery sentences were ordered to be served consecutively, and the reckless endangerment was ordered to run concurrently, giving Petitioner a total effective sentence of 20 years. (Doc. No. 14-1, at 48-49, 52.) The Criminal Appeals Court affirmed the convictions and sentences on September 27, 2013. (Doc. No. 14-17); State v. Harrison, No. M2011-01803-CCA-R3-CD, 2013 WL 5436711 (Tenn. Ct. Crim. App. May 14, 2013), appeal denied (Tenn. Feb. 12, 2014). The Tennessee Supreme Court denied Petitioner's application to appeal on February 12, 2014. Id.

         On December 1, 2014, Petitioner filed a pro se petition for post-conviction relief. (Doc. No. 14-20, at 1.) Counsel was appointed (Doc. No. 14-20, at 35), but did not file an amended petition. The trial court held a hearing on February 9, 2015, and denied relief on February 10, 2015. (Doc. No. 14-20, at 42.) The Criminal Appeals Court affirmed on January 12, 2016. (Doc. No. 14-26); Harrison v. State. No. M2015-00454-CCA-R3-PC, 2015 WL 4737430 (Tenn. Ct. Crim. App. Aug. 11, 2015). Petitioner did not seek discretionary review in the Tennessee Supreme Court.

         Petitioner filed hispro se Petition under 28 U.S.C. § 2254 in this Court on March 14, 2016, and Respondent acknowledges that it is timely. (Doc. No. 23, at 2.)

         II. STATEMENT OF FACTS

         The Criminal Appeals Court on post-conviction appeal summarized the relevant evidence in this the case as follows:

S.L. testified that, at the time of trial, she was seven years old.... S.L. testified that she had a grandmother she called "[N]ana" and a grandfather she called "[P]eepaw." She identified the [Petitioner] as "Peepaw."
S.L. recalled a time when she and her baby sister were in the [Petitioner's car with him. She said she was sitting in the back of his car on her "very old car seat" and that the [Petitioner] was driving. As they were driving, the [Petitioner] told her that she could come to the front of the car. At one of the red lights, S.L. moved to the front seat of the car and sat next to the [Petitioner]. She said she was no longer, at this point, in a car seat.
S.L. testified that, during the drive, the [Petitioner] took his penis out of the hole in his pants. She said he "shaked it" and then "squeezed it" and then "white stuff came out." She said the "white stuff looked like "pee." S.L. said that "[w]hen he let [the white stuff] go, it like just sucked in there." S.L. said, later, the [Petitioner] "shaked it again and then squeezed it, and then more white stuff came out.["] And he touched it and tasted it and told her it was sweet. She tasted it, and the [Petitioner] asked her if it was "sour or sweet, " and she described the taste as "[s]our."
S.L. testified that, during the ride, the [Petitioner] also asked her if she had to go "pee." She told him that she did not, and he said he was going to "check it." He stuck two fingers into her shorts and touched the inside of her vagina. S.L. said it felt"[t]icklish"
S.L. said that the [Petitioner] told her he did not want her to tell anyone about what had happened, but she could not recall exactly what he said. She also recalled that, while they were still in the car together, he told her he would get into trouble if she told anyone.

Harrison v. State, No. M201500454CCAR3PC, 2016 WL 153028, at *l-2 (Tenn. Ct. Crim. App. Jan. 12, 2016) (quoting State v. Harrison, No. M2011-01803-CCA-R3-CD, 2013 WL 5436711, at *l-2 (Tenn. Ct. Crim. App. Sept. 27, 2013).

         III. ISSUES PRESENTED FOR REVIEW

         Petitioner asserts the following claims for relief:

         1. There is insufficient evidence to support his conviction for aggravated sexual battery in Count 2.

         2. Trial counsel was ineffective for failing to object to the trial court's instruction to the jury that it could convict Petitioner of aggravated sexual battery as a lesser-included offense of rape of a child as charged in Count 1.

         3. Appellate counsel was ineffective for failing to appeal on the basis of the improper instruction to the jury to consider aggravated sexual battery as a lesser-included offense of rape of a child.

         IV. STANDARD OF REVIEW

         A. AEDPA Review on the Merits

         The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). A federal court may grant habeas relief to a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S .C. § 2254(a). Upon finding a constitutional error on habeas corpus review, a federal court may only grant relief if it finds that the error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Peterson v. Warren, 311 F.App'x 798, 803-04 (6th Cir. 2009).

         AEDPA was enacted "to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases . . . and 'to further the principles of comity, finality, and federalism.'" Woodford v. Garceau, 538 U.S. 202, 206 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 436 (2000)). AEDPA's requirements "create an independent, high standard to be met before a federal court may issue a writ of habeas corpus to set aside state-court rulings." Uttecht v. Brown, 551 U.S. 1, 10 (2007) (citations omitted). As the Supreme Court has explained, AEDPA's requirements reflect "the view that habeas corpus is a 'guard against extreme malfunctions in the state criminal justice systems, ' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)). Where state courts have ruled on a claim, AEDPA imposes "a substantially higher threshold" for obtaining relief than a de novo review of whether the state court's determination was incorrect. Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)).

         Specifically, a federal court may not grant habeas relief on a claim rejected on the merits in state court unless the state decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) and (d)(2). A state court's legal decision is "contrary to" clearly established federal law under § 2254(d)(1) "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. at 412-13. An "unreasonable application" occurs when "the state court identifies the correct legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. A state court decision is not unreasonable under this standard simply because the federal court finds it erroneous or incorrect. Id. at 411. Rather, the federal court must determine that the state court's decision applies federal law in an objectively unreasonable manner. Id. at 410-12.

         Similarly, a district court on habeas review may not find a state court factual determination to be unreasonable under § 2254(d)(2) simply because it disagrees with the determination; rather, the determination must be '"objectively unreasonable' in light of the evidence presented in the state court proceedings.'" Young v. Hofbauer, 52 F.App'x 234, 236 (6th Cir. 2002). "A state court decision involves 'an unreasonable determination of the facts in light of the evidence presented in the State court proceeding' only if it is shown that the state court's presumptively correct factual findings are rebutted by 'clear and convincing evidence' and do not have support in the record." Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007) (quoting § 2254(d)(2) and (e)(1)); but see McMullan v. Booker, 761 F.3d 662, 670 and n.3 (6th Cir. 2014) (observing that the Supreme Court has not clarified the relationship between (d)(2) and (e)(1) and the panel did not read Matthews to take a clear position on a circuit split about whether clear and convincing rebutting evidence is required for a petitioner to survive (d)(2)). Moreover, under § 2254(d)(2), "it is not enough for the petitioner to show some unreasonable determination of fact; rather, the petitioner must show that the resulting state court decision was 'based on' that unreasonable determination." Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011). Thus the standard set forth in 28 U.S.C. § 2254(d) for granting relief on a claim rejected on the merits by a state court "is a 'difficult to meet' and 'highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.'" Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Harrington, 562 U.S. at 102, and Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). The petitioner carries the burden of proof. Pinholster, 563 U.S. at 181.

         B. Exhaustion and Procedural Default

         1. Exhaustion

         28 U.S.C. §§ 2254(b) and (c) provide that a federal court may not grant a writ of habeas corpus on behalf of a state prisoner unless, with certain exceptions, the prisoner has presented the same claim to the state courts. Pinholster, 563 U.S. at 182. This rule has been interpreted by the Supreme Court as one of total exhaustion. Rose v. Lundy,455 U.S. 509 (1982). Thus, each and every claim set forth in a federal habeas corpus petition must have been presented to the state appellate court. Picard v. Connor,404 U.S. 270 (1971); see also Pillette v. Foltz, 824 F.2d 494, 496 (6th Cir. 1987) (exhaustion "generally entails fairly presenting the legal and factual substance of every claim to all levels of state court review"). Moreover, the substance of the claim must have been presented to the state courts as a federal constitutional claim, Gray v. Netherland,518 U.S. 152, 162-63 (1996); Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984), and under the same legal theory in which it is later presented in ...


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