United States District Court, M.D. Tennessee, Nashville Division
A. TRAUGER UNITED STATES DISTRICT JUDGE
a habeas corpus action brought by a state prisoner pursuant
to 28 U.S.C. § 2254. The petitioner is serving a term of
life imprisonment with the possibility of parole plus 25
years, to be served consecutively, imposed by the Wilson
County Criminal Court on November 13, 2003, after a jury
convicted the petitioner of first- and second-degree murder.
The respondent has filed an answer to the petition (ECF No.
16) stating that the grounds should be denied because they
are not cognizable in federal habeas proceedings, are without
merit and are procedurally barred.
matter is ripe for review and the court has jurisdiction. 28
U.S.C. § 2241(d). The respondent does not dispute that
the petitioner's federal habeas petition is timely. (ECF
No. 16 at 2). The respondent states that the federal habeas
petition at issue here appears to be the petitioner's
first application for federal habeas relief. (Id.)
a federal court must presume the correctness of a state
court's factual findings unless the petitioner rebuts
this presumption with ‘clear and convincing evidence,
” 28 U.S.C. § 2254€(1), and because the
issues presented can be resolved with reference to the
state-court record, the court finds that an evidentiary
hearing is not necessary. See Schriro v. Landrigan,
550 U.S. 464, 474 (2007) (holding that if the record refutes
a petitioner's factual allegations or otherwise precludes
habeas relief, the district court is not required to hold an
evidentiary hearing (citing Totten v. Merkle, 137
F.3d 1172, 1176 (9th Cir. 1998))). Upon review and applying
the AEDPA standards, the court finds that the petitioner is
not entitled to relief on the grounds asserted. Accordingly,
the petition will be denied and this matter dismissed.
state prosecution arose from the shooting death of Christy
Waller, the victim, who was pregnant at the time of her
death, and her fetus. On September 23, 2002, the petitioner
was indicted by the Wilson County grand jury and charged with
two counts of premeditated murder. Petitioner was tried
before a jury beginning November 12, 2003 and concluding on
November 13, 2003. At the conclusion of trial, on November
13, 2003, the jury found the petitioner guilty of
first-degree premeditated murder and second-degree murder.
(ECF No. 15-1 at 81-82.) That same day, the trial court
imposed a life sentence for the first-degree murder
conviction. (Id. at 81.) Following a sentencing
hearing on January 15, 2004, the petitioner was sentenced to
a consecutive term of 25 years imprisonment to be served at
100% for the second-degree murder conviction. (Id.
petitioner appealed his judgment of conviction to the
Tennessee Court of Criminal Appeals (“TCCA”),
which rejected all appellate arguments and affirmed the
petitioner's convictions and sentences in an unpublished
opinion issued on June 26, 2006. (ECF No. 1-1 at 1; see
also State v. Jason Curtis Johsnon, No.
M2003-03060-CCA-R3-CD; 2006 WL 407767, at *1 (Tenn. Crim.
App. Feb. 17, 2006.) The petitioner filed an application for
permission to appeal to the Tennessee Supreme Court, which
was denied on June 26, 2006.
16, 2007, the petitioner filed a petition for post-conviction
relief in the Wilson County Criminal Court. On December 5,
2007, counsel was appointed to assist the petitioner, (ECF
No. 15-14 at 76.), and on August 10, 2009, counsel filed an
amended petition for post-conviction relief in the state
court (ECF No. 15-14 at 82-123). The matter was heard on
April 26, 2013, and on January 9, 2015, the state court
issued an order denying relief. (ECF No. 15-14 at 144-148.)
petitioner appealed to the TCCA, which denied relief on
December 30, 2015. (See Johnson v. State, No.
M2015-00258-CCA-R3-PC, 2015 WL 9581560, at *1 (Tenn. Crim.
App. Dec. 30, 2015).) The petitioner did not apply for
permission to the appeal to the Tennessee Supreme Court.
STATEMENT OF FACTS
TCCA summarized the facts presented at trial as follows:
For clarity in this opinion, Christy Waller will be referred
to as the “victim, ” and her fetus as “the
unborn child” or “fetus.” James Damon
Brock, Brian Hanna, and Jason Waller, the victim's
husband, worked for Townsend Tree Service. Mr. Brock
testified that he picked up Mr. Waller and Mr. Hanna, who
lived at the Waller residence, between 4:30 a.m. and 5:00
a.m. on September 17, 2002. The three men were scheduled to
meet the company's trucks in Williamson County at 6:00
a.m. Mr. Brock observed the victim and Mr. Waller kiss and
hug before Mr. Waller got into the car. Mr. Brock parked and
locked his car, a white Honda Accord, at the company's
designated meeting place. Mr. Brock said that only his
girlfriend, Rebekah Crutcher, had a duplicate key to the car,
and the car was in the same spot when Mr. Brock returned to
the parking lot at the end of the workday.
Mr. Brock said that he and Mr. Hanna worked with the cutting
crew, and Mr. Waller worked behind them with the chipper
crew. As the day wore on, the chipper truck fell further and
further behind the cutting truck. Mr. Brock said that he ate
lunch with Mr. Waller from 12:15 p.m. to 12:30 p.m. Mr. Brock
said that Mr. Waller drove his truck to the dump later that
afternoon. Mr. Waller's truck had transmission problems,
and a mechanic was dispatched to the dump site to fix the
vehicle. Accordingly, Mr. Waller did not arrive back at the
meeting place until 6:00 p.m. or 6:30 p.m.
Mr. Brock said that he drove back to Wilson County with Mr.
Hanna and Mr. Waller, and the men stopped to visit a friend
who lived about ten miles from the Waller residence. After
visiting for approximately forty-five minutes, the three men
bought something to drink at a market and then started toward
Mr. Waller's home. Mr. Brock spotted Ms. Crutcher driving
toward him. Ms. Crutcher turned her car around and caught up
with Mr. Brock. Mr. Brock said that Ms. Crutcher was angry
because the men were late getting home from work. Ms.
Crutcher followed the men to the Waller residence.
The group did not see the victim when they arrived. Mr.
Waller stayed in the front yard, and started calling people
on a cell phone to see if he could find the victim. Mr. Brock
said that Mr. Hanna entered the house first and returned with
“space ship eyeballs.” Mr. Hanna told Mr. Brock
to come inside, and he led Mr. Brock into the bedroom where
the victim was lying slumped against a closet door. Mr. Brock
went outside and told Mr. Waller that something had happened
to the victim, and Ms. Crutcher called 911.
Mr. Brock said that he was aware that Mr. Waller took drugs,
but he did not think Mr. Waller had a serious drug problem.
Mr. Brock said that he knew Defendant's name because Mr.
Waller told him that Defendant was Mr. Waller's drug
supplier. Mr. Brock said that he drove Mr. Waller to
Defendant's house at some point before the shooting. Mr.
Waller wanted to give Defendant some living room furniture as
a partial payment of his outstanding drug debt. Mr. Brock
helped Defendant load the furniture into Mr. Brock's
truck. When they arrived at Defendant's apartment, Mr.
Waller went inside. When Mr. Waller returned to the truck, he
told Mr. Brock that they had to bring Defendant a recliner
because Defendant was “not giving [him] nothing”
for the furniture. The two men returned to Mr. Waller's
house, loaded up the recliner, and returned to
Defendant's apartment. Defendant was not home, so Mr.
Waller left the recliner at the apartment building.
On cross-examination, Mr. Brock said that the front door was
open when he, Mr. Hanna, and Mr. Waller returned to the
Waller home. Mr. Brock estimated that about twenty minutes
elapsed between the time Mr. Hanna discovered the
victim's body and the 911 call.
Officer Chris Allison, with the Wilson County Sheriff's
Department, arrived at the Waller residence at 8:32 p.m. Mr.
Waller escorted Officer Allison to the body, and then Mr.
Waller went back outside. Officer Allison did not notice a
weapon at the crime scene. Detective Chris Hodge processed
the crime scene. He found two unfired .357 bullet shells and
one unfired 12-gauge shotgun shell in the victim's
bedroom. Detective Hodge testified that there were no signs
of forced entry, and the door leading to the basement was
locked. A single strand of brownish-blond hair was found in
the victim's hand. Detective Hodge said that the hair was
not submitted for testing, but it resembled the victim's
hair. Detective Hodge acknowledged that Mr. Waller's hair
was dark brown.
Megan Bartlett was subpoenaed as a State's witness. Ms.
Bartlett and Ashley Vaughan were staying with Angela Hurd,
when Defendant arrived at Ms. Hurd's apartment around
9:30 a.m. on September 17, 2002. Defendant borrowed Ms.
Vaughan's black, two-door Saturn, and said,
“I'm going to kill a bitch if I don't get my
$900.” Ms. Bartlett said that Defendant returned Ms.
Vaughan's car around noon that day. On cross-examination,
Ms. Bartlett said that Defendant did not mention any names,
and that she had never heard Defendant threaten anyone
before. Ms. Bartlett said that Defendant did not talk about
the shooting with her.
Leah Mendoza was also subpoenaed as a State's witness.
She testified that she talked to Defendant on September 18,
2002, and he asked her to tell the police that he had been at
her house on September 17, 2002. Ms. Mendoza refused his
request. Ms. Mendoza had heard rumors about the shooting of
the victim. When she asked Defendant why he did it, Ms.
Mendoza said that Defendant replied, “You know me.
Business.” Ms. Mendoza testified on cross-examination
that she had never seen Defendant act violently or threaten
Antonio Hardy testified that Defendant came to his house
early on September 17, 2002, and retrieved a gun. Mr. Hardy
said that Defendant returned to his apartment later that
afternoon and muttered under his breath that “he [had]
shot somebody.” Krissy Foster, Mr. Hardy's
girlfriend, said that Defendant returned to the apartment
around one o'clock p.m. with Mr. Hardy's brother,
Phillip, and asked her to wash his hair for him. Ms. Foster
said that Defendant also asked Antonio Hardy for some
clothes, but Mr. Hardy's clothes did not fit Defendant.
Ms. Foster, too, heard Defendant say that he had killed
Jason Locke, a special agent with the T.B.I., testified that
he and the investigating officers searched for Defendant
after the shooting but were unable to locate him. Wilson
County Sheriff Terry Ashe held a press conference at the
Wilson County Justice Center at 1:00 p.m. on September 22,
2002, asking for information about Defendant's
whereabouts. The press conference aired on the five
o'clock evening news. Agent Locke said that he received a
call from the Sheriff's Department at 6:00 p.m. that
Defendant had voluntarily arrived at the department.
Agent Locke said that Defendant was read his Miranda
rights and signed a written waiver at 7:20 p.m. Agent Locke
said that Defendant “was extremely cooperative, good
attitude, smiling, making jokes.” Agent Locke said that
Defendant initially said that he had gone to Gallatin on
September 17, 2002 to see family members. Defendant said that
he had lived with Mr. Waller and the victim for a period of
time, and Defendant was aware that the victim was pregnant.
Agent Locke said that he orally interviewed Defendant from
7:20 p .m. until approximately 11:45 p.m., with several
breaks during this time frame. At approximately 11:45 p.m.,
Defendant said, “Okay, I shot the bitch.” They
took a break, and then Defendant gave a written statement.
Defendant said in his written statement that Mr. Waller and
the victim had bought cocaine from him for several months
preceding the shooting. Defendant said that he had a good
relationship with Mr. Waller until Mr. Waller accused
Defendant of breaking into his house. After using drugs all
night, Defendant said that he decided to borrow Ms.
Vaughan's car and drive over to Mr. Waller's house on
September 17, 2002, to confront Mr. Waller about his
accusations. Defendant said he carried a .38 revolver with
him. The victim opened the door when he knocked. Defendant
said that the victim told him she ought to shoot him and
started walking down the hall to her bedroom. Defendant said
that the victim “walked toward her closet and I shot
her. I thought I had missed, so I shot a second time. I
don't remember shooting any more than that.”
Defendant said that he threw the revolver off the Burton Road
bridge, and then burned the clothes he was wearing at the
time of the incident in the Inman Court projects. Defendant
said that he was “high on drugs” when he shot the
victim, and that he had forgotten that the victim was
Agent Locke said that Defendant completed his first written
statement at 1:09 a.m. on September 23, 2002. Agent Locke
said that Defendant was relaxed, calm, and cooperative during
the process. Defendant accompanied Agent Locke to the Inman
Court projects, but they could not find any burn marks on the
ground where Defendant said that he had burned his clothes.
Defendant and Agent Locke then went to the Burton Road
bridge, arriving at about 1:55 a.m.
After they returned to the Sheriff's Department, Agent
Locke said that Defendant gave a second written statement at
2:34 a.m. in which he identified a blue bandanna, a pair of
blue jeans shorts, a pair of Reebok shoes, and a Cricket cell
phone bill as his property. In his statement, Defendant
acknowledged that he might have been wearing the shorts and
Reebok shoes when he shot the victim, but that he could not
remember. Defendant also said that he might not have burned
the shorts as he had previously stated.
Agent Locke said that Defendant was read his Miranda
rights again at 5:15 a.m. and he signed a written waiver.
Defendant then gave a third written statement which concluded
at 5:40 a.m. He stated that his girlfriend, Sherita Harrison,
was with him when he shot the victim. Defendant said he was
wearing the blue jean shorts and Reebok shoes when he shot
the victim. He was also wearing a white tee shirt which
Defendant later gave to Phillip Hardy for disposal. Defendant
said he drove to his aunt's house in Lebanon after he
shot the victim and borrowed some vice grips and a hammer.
Defendant said he put his revolver and his aunt's tools
in his father's shed until the following Saturday. He
then broke the gun into pieces with the hammer, and threw the
pieces one by one on Bluebird Road.
Detective Ricky Knight accompanied Defendant to Bluebird Road
on September 23, 2002, but they were unable to locate any
parts of Defendant's gun. Detective Knight read Defendant
his Miranda rights, Defendant signed a written
waiver, and Defendant gave a fourth written statement at 9:20
a.m. In his statement, Defendant said that he threw the
gun's cylinder on the left side of a creek near Bethany
Lane, and threw the barrel on the right side of the creek.
Defendant stated that he could not remember where he threw
the other pieces of the gun.
Dr. Donald Wayne Nuessle, the deputy medical examiner for
Wilson County, received a report of the victim's shooting
at 8:30 p.m. on September 17, 2002. Dr. Nuessle testified
that when he arrived at the residence, he found the victim
slumped against a closet door with what appeared to be a
bullet wound to her forehead. Based on the victim's skin
and body temperature, and the degree of rigor mortis, Dr.
Nuessle estimated that the victim had died at approximately
1:00 p.m. that day, with a variance of one and one-half to
two hours either way. Dr. Nuessle was unable to confirm that
the victim was pregnant at the time of his examination
because of the degree of rigor mortis.
Shelly Betts, a forensic scientist with the T.B.I., testified
that she examined several fragments of two bullets retrieved
from the crime scene. Agent Betts said that the two bullets
had the same class characteristics, but there were not enough
individual markings on the fragments to tell whether or not
the bullets were fired from the same weapon. Agent Betts said
that the two bullets could have been fired from either a .38
special or a .357 magnum.
Dr. John Gerber performed the victim's autopsy on
September 18, 2002. Dr. Gerber testified that the
victim's toxicology screen was clear of drugs. Dr. Gerber
stated that the victim died of two bullet wounds to the head.
One bullet entered the left top of the victim's head,
traveled downward and then backward and to the left. Bullet
fragments were found in the temporal bulb at the base of the
victim's brain. Dr. Gerber said that he could not detect
the presence of stippling because of the victim's hair
but there was soot present around the bone at the entry place
of the bullet. The second bullet entered the victim's
left forehead about three inches below the top of her head
and traveled backward, down and to the right. The trajectory
of both bullets was consistent with the weapon being fired
from above the wound. Dr. Gerber said that stippling was
present under the victim's eyes, the bridge of her nose,
and her arm, indicating that the victim was holding her arm
up when she was shot. Based on the stippling and soot around
the victim's wounds, Dr. Gerber stated that the shooter
was standing six inches to two feet away from the victim when
he fired his weapon.
Dr. Gerber stated that the victim's female unborn child
was twenty-three to twenty-four weeks old and showed normal
internal and physical development. The fetus was viable and
weighed 500 grams. The fetus' cause of death was
asphyxiation from lack of oxygen in the victim's blood
after the victim died of her gunshot wounds.
Mike Lamb, the victim's father, testified that the victim
and Mr. Waller were experiencing financial difficulties even
though the victim had recently inherited $250, 000 from her
grandmother. Mr. Lamb said that he lent the victim money to
pay the arrearage on her mortgage payments because the bank
was threatening foreclosure. Mr. Lamb said that one of the
couple's cars had been repossessed. Mr. Lamp said that
the victim and Mr. Waller had a prenuptial agreement.
The defense called Mr. Waller as a witness. Mr. Waller
confirmed that he left home on September 17, 2002, between
5:00 a.m. and 5:15 a.m. with Mr. Brock. He said that he did
not see Mr. Brock at work except at lunchtime. Mr. Waller
said that he did not own a car at the time of the shooting
because he had traded his car for drugs. Mr. Waller said that
he owed money to a number of drug dealers, including
Defendant and Phillip Hardy, but that he had never argued
with Defendant over his outstanding debt to Defendant, and
Defendant did not threaten him or ask for payment. Mr. Waller
confirmed that he gave Defendant some furniture as partial
payment of his debt. Mr. Waller said that the victim was
going to receive an installment soon on her inheritance from
her grandmother in the amount of $75, 000, and Defendant gave
Mr. Waller drugs on credit in anticipation of the
inheritance. Mr. Waller said that nothing was taken from the
house after the shooting.
In his written statement to the police, Mr. Waller said that
he owed Defendant about $900.00 for the drugs he received
from Defendant and Phillip Hardy between February or March
2002, and June 2002. Mr. Waller said that Defendant accused
him of “snitching” on Defendant in February or
March 2002. Defendant told Mr. Waller he would kill Mr.
Waller's children if Defendant was arrested. Mr. Waller
told Defendant that he was not a snitch, and he would kill
Defendant if he harmed his children. Mr. Waller said that
those were the only threats Defendant ever made against him.
Mr. Waller said that on September 3, 2002, he and the victim
heard noises in the basement. When they investigated, they
found Defendant in the basement and Phillip Hardy hanging
from a window. Defendant and Mr. Hardy accompanied Mr. Waller
and the victim upstairs, and Defendant asked Mr. Waller about
the debt. Mr. Waller said that the victim told Defendant she
was going to find out soon how much money she was receiving
from her grandmother's estate, and Defendant said to just
call him when the money came in. Mr. Waller said that the
incident was “no big deal.”
Mr. Waller denied that he kept guns in the house but admitted
that several gun cartridges were found on top of his bedroom
dresser after the shooting. Mr. Waller said that the gun
cartridges belonged to a friend. Mr. Waller said that he and
the victim had discussed buying a gun for the house but had
not done so at the time of the shooting. Mr. Waller said that
he had seen Defendant carrying guns before.
On redirect examination, Mr. Waller said that he had given
his car to Defendant in exchange for drugs. Mr. Waller said
that Defendant did not keep up the car payments, and the car
was eventually repossessed by the bank.
Thomas Carey, the victim's next door neighbor, testified
that the Wallers were good neighbors until the summer of
2002. Mr. Carey said that people started arriving at the
Wallers' residence at all hours of the night. Mr. Carey
said that he and a neighbor across the street had items
stolen from their property that summer. Mr. Carey stated that
he heard someone shoot a gun off the Wallers' back deck
approximately three weeks before the incident, and he called
Deborah Carey testified that she drove by the victim's
house some time before noon on September 17, 2002. She saw a
small, white car parked in the driveway, but she did not see
The State called Adrian Dodd and Robert Britten as rebuttal
witnesses. Mr. Dodd testified that he worked for Townsend
Tree Service, and was working with Mr. Waller in Williamson
County on September 17, 2002. Mr. Dodd said that Mr. Waller
was with him all day. They drove their truck to the dump
around 2:00 p.m. The truck had transmission trouble, and Mr.
Dodd returned to the job site around 2:45 p.m. after he
called a mechanic. Mr. Dodd said that Mr. Waller arrived at
the parking lot between 5:00 p.m. and 5:30 p.m. On
cross-examination, Mr. Dodd said that he saw Mr. Brock at
work on September 17, 2002, but not Mr. Hanna.
Mr. Brittern, also an employee at Townsend Tree Service,
testified that Mr. Waller's truck broke down around 3:00
p.m. or 3:30 p.m. on September 17, 2002. Mr. Brittern said
that Mr. Waller waited at the dump while Mr. Brittern worked
on the truck for thirty or thirty-five minutes, and then Mr.
Waller followed Mr. Brittern back to the parking lot. Mr.
Brittern also stated that he saw Mr. Brock and Mr. Hanna at
work that day.
Johnson, 2006 WL 407767, at *1-7.
TCCA summarized the evidence presented at the post-conviction
evidentiary hearing,  in pertinent part, as follows:
At the post-conviction hearing, the court admitted into
evidence the deposition transcript of Dr. Feng Li. In that
deposition, Dr. Li stated that he was present during the
autopsy of Mrs. Waller and her fetus. In preparation for the
deposition, Dr. Li had reviewed the autopsy report, Dr.
Gerber's testimony, and tables Dr. Li commonly used to
determine the gestational age of a fetus. Dr. Li concurred
with Dr. Gerber's conclusion that Mrs. Waller's fetus
was twenty-three to twenty-four weeks gestational age and
weighed 500 grams. Dr. Li assumed that Dr. Gerber had relied
on Mrs. Waller's clinical history when reaching his
conclusion; however, Dr. Li did not know if Dr. Gerber relied
on any of Mrs. Waller's medical records during the
autopsy. Dr. Li explained that the most important factor for
determining viability was the fetus's lungs. Dr. Gerber
had noted that the lungs had three lobes on the right and two
lobes on the left, which indicated to Dr. Li that the lungs
were developing normally. Dr. Li stated that he could not
determine whether the fetus was alive or dead at the time of
Mrs. Waller's death just by examining the fetus. Dr. Li
explained that, under the legal definition of viability,
“any gestation age beyond [twenty-two] week[s] and
above 500 grams is defined as viable.” However, Dr. Li
explained that it was not possible to determine whether any
one individual fetus was viable because there were too many
variables. Dr. Li admitted that a fetus's viability might
be affected if the mother used drugs such as cocaine, but he
could not say “which direction it would affect.”
On cross-examination, Dr. Li agreed with Dr. Gerber's
testimony that the fetus was “right at the edge, it
could have survived, it could have not survived. It depends.
500 grams is a very critical point.”
Appellate counsel testified that he did not recall raising on
appeal the issues of the State's witness commenting on
the Petitioner's right not to testify or the sufficiency
of the evidence as to the viability of the fetus. Appellate
counsel explained that he raised the issues that he thought
were supported by the record and were raised in the motion
for new trial. On cross-examination, appellate counsel noted
that this court addressed the sufficiency of the evidence
regarding the viability of the fetus on direct appeal and
determined that there was sufficient evidence to support the
Petitioner's conviction for second degree murder.
Lieutenant Detective Ricky Knight testified that he
participated in the investigation of Mrs. Waller's death.
Detective Knight also admitted that he was the half-brother
of one of the witnesses in the case, Leah Mendoza. During the
investigation, Detective Knight learned from his father that
Ms. Mendoza wanted to talk to Detective Knight about the
case. Detective Knight notified his supervisor, and his
supervisor spoke with Ms. Mendoza. Detective Knight stated
that he had not seen Ms. Mendoza's statement wherein she
claimed that Detective Knight threatened to have her
“locked up” if she did not cooperate with the
police. Detective Knight denied making such threat. Detective
Knight read a portion of Ms. Mendoza's testimony from the
trial where she said, “Well, Friday they called my
house and said that they was tired of playing games with me
and if I didn't pick my subpoena up, they were going to
lock me in jail until the court date. That's what my
brother told my stepmother.” Detective Knight denied
threatening Ms. Mendoza by way of her stepmother.
* * *
Trial counsel spoke with Ms. Mendoza “at length”
before trial. During cross-examination of Ms. Mendoza, trial
counsel was able to bring out a number of inconsistencies
between her testimony and her prior statements. Trial counsel
also noted that Antonio Hardy had provided two statements to
police; in the first he simply stated that the Petitioner was
at Mr. Hardy's home on the day of the offense, but the
second statement included more details about the Petitioner
washing his hair, the presence of a gun, “and that kind
of stuff.” Trial counsel noted that the statements
differed from each other. Trial counsel could not recall
whether Mr. Hardy had an agreement with the State for his
testimony. However, trial counsel stated that Mr. Hardy was
threatened with losing his children and that Mr. Hardy
“changed his story on cross that he had never seen a
gun.” . . . Trial counsel recalled that Krissy Foster,
Mr. Hardy's girlfriend, also testified inconsistently
with her police statement. However, trial counsel did not
think that he presented her contradictory statements to the
* * *
Trial counsel recalled that Tennessee Bureau of
Investigations Special Agent Jason Locke made a comment
during his testimony that the Petitioner would have an
opportunity to take the stand and testify. Trial counsel
explained that he did not object to Agent Locke's comment
or ask for a curative instruction because, at the time the
comment was made, trial counsel believed the Petitioner was
going to testify. According to trial counsel, the Petitioner
was going to testify that he had an eighth-grade education
and that he did not make the statements to police freely and
voluntarily. Trial counsel noted that the Petitioner's
testimony was a crucial part of their defense theory. The
Petitioner had told trial counsel that he intended to
testify, and he did not indicate differently until the last
day of trial. At that point, the Petitioner decided not to
testify because “his mother had convinced him that if
[trial counsel] put him on the stand that the [S]tate was
going to cross him up, ” so he elected not to testify.
Trial counsel acknowledged that the prosecutor . . .
commented during closing that the victim was begging for her
life. Trial counsel admitted that he did not object to these
statements. He noted that the prosecutor's comment about
the victim's begging for her life was consistent with the
evidence of the bullet trajectory and that she was shot while
she was on her knees with her arms in front of her face.
Trial counsel did not recall whether he obtained Mrs.
Waller's medical records or if he asked Dr. Gerber
whether he relied on Mrs. Waller's medical records when
forming his opinion about the viability of the fetus. Trial
counsel stated that “there was no way any doctor could
conclusively testify beyond a reasonable doubt” that
the fetus could have survived outside the mother's body.
Trial counsel recalled that Dr. Gerber testified that the
fetus would have been considered viable. Trial counsel did
not object to this testimony, but during cross-examination,
trial counsel got Dr. Gerber to admit that there was no way
to determine conclusively whether the fetus was viable. Trial
counsel explained that he did not call a defense expert
witness about viability because he did not think it was
Trial counsel stated that there were two unidentified hairs
found on Mrs. Waller's body-one on her shirt and one in
her hand. Those hairs came from a Caucasian individual and
were consistent in length and color to Mr. Waller's hair.
Trial counsel consciously elected not to have the hairs
tested because there was also a possibility that they were
Mrs. Waller's hairs. If the test results revealed that
they belonged to Mrs. Waller, then trial counsel could not
argue that the hairs had come from Mr. Waller. Trial counsel
“thought the value of not knowing was far greater . . .
than the probability or possibility that the hair could have
actually belonged to the victim herself, and if that was the
case, it just kind of undermined our entire theory all
Trial counsel stated that Agent Locke testified as to the
existence of blood spatter at the scene. However, trial
counsel did not believe Agent Locke gave any testimony about
the trajectory of the bullet based on the blood spatter. If
Agent Locke had given expert testimony of that sort, trial
counsel would have objected.
* * *
Additionally, in order for the defense theory to be
successful, trial counsel acknowledged that the Petitioner
would have had to take the stand and deny all the statements
he made to police and other individuals.
* * *
The Petitioner [testified] that Agent Locke's trial
testimony-that the Petitioner said, “I shot the b* * *
* ”-was false. The Petitioner explained: The reason I
had so many different statements was because [Agent] Locke
kept on telling me that what I was saying was not consistent
with the evidence, so I would change it up to tailor whatever
he said. . . . The only reason why I had so many inconsistent
statements is because I really did not know what was going
on. The only reason why I made the statement in the first
place-the only one reason why I made that statement was
because I thought it was in my best interest.
* * *
The Petitioner stated that he was “undecided”
about whether he was going to testify at trial. Trial counsel
told him it was in his best interest to testify, but the
Petitioner was worried about his lack of education. He said
he “didn't want to get twisted up and turned around
and it hurt me more that it help me, ” so he decided
not to testify. The Petitioner claimed he told trial counsel
that he was not going to testify before the trial began.
* * *
The Petitioner claimed that he confessed to the crime
“under threatened coercion” and “under
manipulation and trickery” but not voluntarily. When
asked about how he was tricked into making statements to
other witnesses, the Petitioner noted that Mr. Hardy said in
his first statement that he had not seen the Petitioner on
the day of the offense and that Mr. Hardy did not know
anything about the crime. The Petitioner claimed that Mr.
Hardy implicated the Petitioner under police pressure.
Similarly, the Petitioner said Ms. Foster originally told
police that she had “told [the Petitioner] to wash his
own hair, ” but she changed her story and said she
washed his hair after “they get to talking about taking
her baby away[.]” As to Ms. Mendoza, the Petitioner
claimed, “[T]hey twisted this woman up to the point to
where she was tore all to pieces on the stand. They made her
say stuff that she didn't even put in her original
statement.” Regarding the statement he supposedly made
to Megan Bartlett, the Petitioner said that he and Ms.
Bartlett were not on good terms “because of a personal
relationship, ” and he thought that may have motivated
her testimony. The Petitioner denied saying anything about
killing someone over $900. He also stated that he did not
have reason to kill Mrs. Waller because “a dead person
does not pay.”
* * *
Johnson, 2015 WL 9581560, at *2-10.
ISSUES PRESENTED FOR REVIEW
pro se petition, the petitioner raises the following
grounds for relief:
A. Petitioner's Fifth and Fourteenth Amendment rights
were violated when the trial court denied Petitioner's
motion to ...