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Johnson v. Westbrooks

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

November 30, 2016

JASON JOHNSON, Petitioner,
BRUCE WESTBROOKS, Warden, Respondent.



         This is 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.

         The 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.)

         Because 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.


         The 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. at 82.)

         The 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.

         On May 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.)

         The 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.


         The 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 anyone before.
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 someone.
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 pregnant.
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 the police.
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 victim.
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.

         The TCCA summarized the evidence presented at the post-conviction evidentiary hearing, [1] 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 jury.
* * *
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 necessary.
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 together.”
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.


         In his 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 ...

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