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Owens v. Steward

United States District Court, E.D. Tennessee, Winchester

March 29, 2017

LONNIE LEE OWENS, Petitioner,
v.
HENRY STEWARD, Respondent.

          MEMORANDUM & ORDER

          HARRY S. MATTICE, JR. UNITED STATES DISTRICT JUDGE

         Acting pro se, Lonnie Lee Owens, (“Petitioner”), brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his 2005 judgment of conviction in Franklin County, Tennessee Circuit Court. [Doc. 1 at 1]. A jury convicted Petitioner of second-degree murder, theft of over $10, 000.00, and abuse of corpse, and he is serving a sentence of 24 years. [Id. at 1-2]. Warden Henry Steward has filed an answer in opposition to the petition [Doc. 9], Petitioner has replied to the answer [Doc. 16], and this case is now ripe for disposition.

         I. PROCEDURAL HISTORY

         On December 3, 2004, Petitioner was convicted by a jury in the Circuit Court of Franklin County, Tennessee on charges of second-degree murder, abuse of a corpse, and theft over $10, 000.00. [Doc. 10-1 at 100-02]. On February 1, 2005, pursuant to the Tennessee Criminal Sentencing Reform Act of 1989, the trial court sentenced Petitioner to twenty-five years for the murder conviction, one year for abuse of corpse, and four years for the theft; these sentences were ordered to be served consecutively, for a total term of thirty years' imprisonment. [Docs. 10-2, 10-3].

         Through counsel, Petitioner filed a direct appeal, challenging only his sentences. [See Doc. 4]. On October 18, 2005, the Tennessee Court of Criminal Appeals (“TCCA”) granted Petitioner's appeal in part, reducing his sentence for the second-degree murder conviction to twenty-four years and reversing the trial court's order that the sentences be run consecutively, rather than concurrently. [Doc. 10-7]. On March 27, 2006, the Tennessee Supreme Court denied Petitioner's request for permission to appeal the decision of the TCCA. [Docs. 10-8, 10-9].

         On November 3, 2006, Petitioner initiated his pro se petition for post-conviction relief, pursuant to Tenn. Code Ann. § 40-30-101, et seq., in the Circuit Court for Franklin County, Tennessee, and subsequently filed three amended petitions. [Doc. 10-10 at 14-51, 101-02, 130-51; Doc. 10-11 at 106-11]. An evidentiary hearing was held on August 1, 2011, and the court denied the petition on October 6, 2011. [Doc. 10-11 at 139-68; see Docs. 10-12 through 10-14]. On April 4, 2013, the TCCA affirmed the denial of the petition, and, on October 16, 2013, the Tennessee Supreme Court denied Petitioner's request for permission to appeal. [Docs. 10-11 at 170; Docs. 10-28 through 10-30].

         On March 4, 2014, Petitioner filed his instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court. [Doc. 1]. The parties agree that the petition was timely filed and that Petitioner has properly exhausted all of the claims raised therein. [Doc. 9 at 2-3; Doc. 16 at 3].

         II. DISCUSSION

         Pursuant to Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), state prisoners may seek federal habeas corpus relief on the ground that they are being held in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254; Reed v. Farley, 512 U.S. 339, 347 (1994). However, Congress has mandated that federal courts review state court adjudications on the merits of such claims using a “highly deferential” standard of review. See, e.g., Harrington v. Richter, 562 U.S. 86, 105 (2011). Under this deferential standard, this Court may not grant habeas relief to a state prisoner unless the state court's decision on the merits of his claims “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

         “Clearly established federal law, ” for the purposes of § 2254(d)(1), refers to rulings of the United States Supreme Court in place at the time of “the last state-court adjudication on the merits.” Greene v. Fisher, 132 S.Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (defining clearly established federal law as “the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision”). A decision is “contrary to” clearly established federal law 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] on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A state-court decision unreasonably applies clearly established federal law if “the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id.

         The standards set forth in the AEDPA are “intentionally difficult to meet.” Woods, 135 S.Ct. at 1376 (quoting White, 134 S.Ct. at 1702); see also Harrington, 131 S.Ct. at 786 (“If [§ 2254(d)] is difficult to meet, that is because it was meant to be.”). Ultimately, however, the AEDPA's highly deferential standard requires this Court to give the rulings of the state courts “the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).

         In his instant petition, Petitioner has raised six grounds for relief pursuant to § 2254 which were adjudicated on the merits in state court. In Ground 1, he argues that the trial court improperly enhanced his sentence based on facts not determined by a jury, in violation of Blakely v. Washington, 542 U.S. 296 (2004), and that the resultant sentence thus violates the Sixth Amendment to the U.S. Constitution. In Grounds 2 through 6, he asserts the following claims of ineffective assistance of counsel: (Ground 2) that counsel was ineffective in failing to challenge the sufficiency of the evidence supporting his convictions on direct appeal;[1] (Grounds 3 & 6) that counsel rendered ineffective assistance “when he pled the Petitioner guilty to the offense of [voluntary m]anslaughter, in the presence of the jury and without the consent of the Petitioner, ” precluding a jury charge for any lesser-included offense to voluntary manslaughter; (Ground 4) that counsel was ineffective in failing to object to “erroneous and prejudicial” statements in the pre-sentence report and in failing to include the trial transcript on appeal; and (Ground 5) that counsel was ineffective in failing to adequately cross-examine, impeach, or elicit favorable testimony from the medical examiner, Dr. Charles Harlan. [Doc. 1 at 6-13; Doc. 2 at 5-31].

         The Court will first address Petitioner's claim that his sentence is unconstitutional, and then will consider his ineffective assistance of counsel claims in chronological order.[2]

         A. Sentencing Claim

         In his first claim, Petitioner contends that the trial court improperly enhanced his sentence by applying an enhancement factor for “extreme cruelty to the victim, ” pursuant to Tenn. Code Ann. § 40-35-114, based on judicial fact-finding. [Doc. 1 at 6-8; Doc. 2 at 5-9]. Petitioner then maintains that his sentence violated Blakely v. Washington, 542 U.S. 296 (2004), and that the Supreme Court confirmed that a sentence enhanced based on judicial fact-finding is unlawful in the subsequent case of Cunningham v. California, 549 U.S. 270 (2007). [Doc. 2 at 5-9]. Thus, he opposes his sentence as unconstitutional under clearly established federal law. [Id.].

         In response, Respondent argues only that Blakely errors are subject to harmless error analysis and that the harmless error standard is satisfied in this case. [Doc. 9 at 16-18]. Specifically, Respondent argues that “there is no question that the jury would have found that the petitioner treated the victim with exceptional cruelty during the commission of the offense” based on the facts presented at trial: that he struck the victim, bound her hands and feet, covered her mouth and nose with duct tape, all while the victim's children were in the house; that she “tried desperately to continue breathing but eventually suffocated to death”; and that he took her body to an island and buried it in a shallow grave. [Id. at 18].

         In Reply, Petitioner asserts that there is no question that the application of the enhancement factor in question violated Blakely, as the sentencing scheme under which he was enhanced “was subsequently rendered unconstitutional” by Cunningham. [Doc. 16 at 9, 16]. He notes that Respondent did not argue that no Blakely error occurred and maintains that he has therefore conceded that such a violation occurred. [Id. at 4, 6, 16]. He maintains that the harmless error analysis used by the Respondent does not apply in this case and that the Court must instead conduct an evidentiary hearing to assess whether the Blakely violation had a substantial and injurious effect. [Id. at 4-18].

         1. Blakely

         Violation The United States Supreme Court precedent relevant to the consideration of a claimed Blakely error begins in 2000 with Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt”; otherwise, the sentence in question may run afoul of the Sixth Amendment right to trial by jury. Id. at 490-500.

         Then, in 2004, the Supreme Court issued its decision in Blakely v. Washington, 542 U.S. 296 (2004), which “clarified that the definition of ‘statutory maximum' for Apprendi purposes is not the high-end that a sentence may not exceed, but rather the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Lovins v. Parker, 712 F.3d 283, 289 (6th Cir. 2013) (quoting Blakely, 542 U.S. at 303). In other words,

[T]he relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment, … and the judge exceeds his proper authority.

Blakely, 542 U.S. at 303-04 (internal citation and quotation marks omitted).

         On January 12, 2005, the Supreme Court decided United States v. Booker, 543 U.S. 220, 243-44 (2005), which applied Apprendi and Blakely to the United States Sentencing Guidelines, declaring as unconstitutional the provision that made the Guidelines mandatory, and reaffirmed that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”

         It was against this legal landscape that Petitioner was sentenced, on February 1, 2005, for his state convictions for second-degree murder, abuse of corpse, and theft. Petitioner was classified as a Range I offender under Tennessee law, which subjected him to a minimum sentence of fifteen years and a maximum sentence of twenty-five years for the offense of second-degree murder; however, the presumptive sentence without the application of any enhancing or mitigating factors was twenty years. [Doc. 10-24 at 80; see also Doc. 10-7 at 6]. The court found one mitigating factor - that Petitioner did not have a prior criminal history. [Doc. 10-24 at 80]. However, the court also found two enhancement factors: that Petitioner treated the victim with “exceptional cruelty” during the commission of the offense, and that the personal injuries inflicted upon the victim were particularly great, noting

I think we have an individual that based on the proof that was presented in the trial - at the trial was duct taped while alive, and was allowed to suffocate and die, and I think that, in fact, fits the statutory definition of both inflicting personal - personal injuries and exceptional cruelty[.]”

[Id. at 80-81]. The court concluded that there was “no comparison” of the enhancement and mitigating factors and sentenced Petitioner to a term of twenty-five years' imprisonment. [Id. at 81].

         On April 15, 2005, shortly after Petitioner's sentencing, the Tennessee Supreme Court considered the applicability of Blakely to Tennessee's Criminal Sentencing Reform Act of 1989, Tenn. Code Ann. § 40-35-210, et seq. (2003). State v. Gomez, 163 S.W.3d 632 (Tenn. 2005) (“Gomez I”). The Tennessee Supreme Court noted that Blakely “[a]dmittedly … includes language which c[ould] be broadly construed to require” a finding that defendants' sentences were unconstitutional based on application of enhancement factors and imposition of maximum sentences predicated solely on judicial fact-finding. Id. at 649, 658. However, in light of Booker, it ultimately rejected a broad reading of Blakely, concluding that the relevant inquiry remained whether the Reform Act mandated the imposition of a sentence in excess of the presumptive sentence when a judge found an enhancement factor. Id. at 661 (“Booker explains that the mandatory increase of a sentence is the crucial issue which courts must consider in determining whether a particular sentencing scheme violates the Sixth Amendment.”). Noting that the finding of an enhancement factor under the Reform Act did not mandate an increased sentence, the Tennessee Supreme Court ultimately concluded that Tennessee's sentencing scheme was not unconstitutional. Id.

         Petitioner's direct appeal was decided by the TCCA on October 18, 2005. The court reversed the sentencing court's decision to run the sentences consecutively and to apply the personal injuries enhancement factor; accordingly, it lowered Petitioner's sentence to a term of twenty-four years.[3] [Doc. 10-7 at 6, 8-9]. However, the Court found no error with respect to the exceptional cruelty enhancement:

Although we do not have any medical testimony about the victim's death in the record before us, [4] the trial court did make a finding for the record during the sentencing hearing that “this was a death by strangulation where the lady was duct taped.” The Defendant admitted that he assaulted the victim in his house while their children were close by. The presentence report admitted into evidence at the sentencing hearing without objection sets forth in part that the Defendant
used duct tape to tape the victim's legs together and her hands behind her back. He then taped her face from the chin to just under her eyes covering her mouth and nose.... Dr. Charles Harlan noted in the autopsy report that ... [h]e ... found traces of duct tape in the victim's lung. Dr. Harlan concluded that the victim's death was caused by suffocation as a result of having her mouth and nose covered with duct tape.
The Defendant does not contest these facts but contends that the method by which he killed the victim did not involve abuse or torture and that this enhancement factor is therefore inapplicable.
The use of exceptional cruelty in the killing of the victim is not an element of second-degree murder and may therefore, where appropriate, be considered as an enhancement factor. See State v. Gray, 960 S.W.2d 598, 611 (Tenn. Crim. App. 1997). The proper application of this factor in a murder case requires evidence that denotes the infliction of pain or suffering for its own sake or from the gratification derived therefrom, and not merely the pain or suffering inflicted as the means of accomplishing the murder. See [State v. Arnett, 49 S.W.3d 250, 258 (Tenn. 2001)]. Our supreme court has recognized that this enhancement factor may be applicable where there is proof of extensive psychological abuse or torture. See id. at 259. For example, the application of this enhancement factor to an especially aggravated robbery conviction has been upheld where the defendant executed two persons by gunshots after having forced them onto the floor of a walk-in cooler. See State v. Reid, 91 S.W.3d 247, app. 311 (Tenn. 2002) (finding that the defendant committed the especially aggravated robbery with exceptional cruelty because “[t]he anguish experienced by the victims at this point [in the cooler] while they awaited their execution is unfathomable”). In upholding the application of this enhancement factor in the Reid case, this Court also noted the defendant's “calculated indifference toward suffering.” Id.
We think the facts support the application of this enhancement factor to the means by which the Defendant killed his estranged wife. The record before us indicates that the Defendant bound the victim's hands and feet and then covered her mouth and nose with duct tape. The Defendant committed these actions while the victim was in his house and while her children were mere feet away. [The Defendant testified during the sentencing hearing that the children were 30 to 40 feet away when he killed the victim]. The autopsy of the victim revealed traces of duct tape in one of the victim's lungs: indicating how desperately she tried to continue breathing. After the victim was dead, the Defendant took her body to an island in Tims Ford Lake and buried it in a shallow grave. He then returned to his house and had sex with his girlfriend. These facts indicate that this Defendant treated the victim with a calculated indifference to her suffering and that he achieved some form of gratification from murdering his wife. These facts also establish that the victim tried desperately to continue breathing but eventually suffocated to death. We have no trouble concluding that the victim's suffering while she struggled to live was “unfathomable” and was the direct result of the method used by the Defendant to accomplish the killing.
As noted by Judge Scott, “If strangulation, with the victim vigorously fighting for another breath, is not exceptional cruelty, I don't know what is.” State v. Bobby Lee Knight, No. 87-234-III, 1989 WL 24436, at *4 (Tenn. Crim. App., at Nashville, Mar. 21, 1989) (Scott, J., dissenting). The Defendant's assertion that the trial court erred in applying this enhancement factor to his conviction for second-degree murder is without merit.
The Defendant also argues that the trial court erred in applying enhancement factors to his sentence on the basis of the United States Supreme Court's decision in [Blakely]. The Blakely decision holds that the Sixth Amendment to the federal Constitution permits a defendant's sentence to be increased only if the enhancement factors relied upon by the judge are based on facts reflected in the jury verdict or admitted by the defendant. See id., 124 S.Ct. at 2537. The only basis upon which enhancement is otherwise permitted is the defendant's previous criminal history: where the defendant has prior convictions, the trial court may enhance the defendant's sentence without an admission or jury finding. See [Apprendi]; Blakely at 2536. Subsequent to the Defendant's appeal of this case, the Tennessee Supreme Court considered the impact of Blakely on Tennessee's sentencing scheme and concluded that the Criminal Sentencing Reform Act of 1989, pursuant to which the Defendant was sentenced, does not violate a defendant's Sixth Amendment rights. See State v. Gomez, 163 S.W.3d 632, 661 (Tenn. 2005). Accordingly, the Defendant's argument on this basis has no merit.

[Doc. 10-7 at 5-10]. On March 27, 2006, the Tennessee Supreme Court denied Petitioner's application for review of his direct appeal. [Doc. 10-9; see Doc. 10-8].

         Then, on January 22, 2007, the Supreme Court issued its opinion in Cunningham v. California, 549 U.S. 270 (2007), invalidating California's determinate sentencing law - a law virtually identical to Tennessee's Reform Act - in light of Blakely. In analyzing the law under Apprendi, Blakely, and Booker, the California Supreme Court concluded that, in “operation and effect, ” California's sentencing system “simply authorize[s] a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge's selection of an appropriate sentence within a statutorily prescribed sentencing range.” Id. at 289 (discussing People v. Black, 113 P.3d 534 (Cal. 2005)). Similarly to the Tennessee Supreme Court in Gomez I, the California Supreme Court held that, because the sentencing judge retained “ample discretion” with respect to sentencing, California's determinate sentencing law did not “diminish the traditional power of the jury, ” and as such, did not implicate any Sixth Amendment concerns. Id. at 289-90 (quoting Black, 113 P.3d at 544).

         The Supreme Court, however, disagreed, stating, “[o]ur decisions … leave no room for such an examination.” Id. at 291. The Court noted

We cautioned in Blakely that broad discretion to decide what facts may support an enhanced sentence, or to determine whether an enhanced sentence is warranted in any particular case, does not shield a sentencing system from the force of our decisions. If the jury's verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied.

Id. at 290-91. It further rejected any comparison of California's sentencing law to the advisory federal system in Booker, noting that any discretion afforded to California's judge to deviate from the presumptive mid-range sentence was born from judicial fact-finding of aggravating factors, rather than from any discretion inherent in the sentencing statute itself. Id. at 292-93. The Court concluded that its “decisions from Apprendi to Booker point to the middle term specified by California's statutes, not the upper term, as the relevant statutory maximum, ” and that, because the sentencing law in question “authorize[d] the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.” Id. at 293.

         On February 20, 2007, the Supreme Court vacated Gomez I, and remanded to the Tennessee Supreme Court for consideration in light of Cunningham. Gomez v. Tennessee, 549 U.S. 1190 (2007). On remand, the Tennessee Supreme Court held that the Reform Act “violated the Sixth Amendment as interpreted by the Supreme Court in Apprendi, Blakely, and Cunningham.” State v. Gomez, 239 S.W.3d 733, 740 (Tenn. 2007) (“Gomez II”).

         There is thus no question that, if Petitioner were sentenced today, the enhanced sentence that he received for his second-degree murder conviction would violate Blakely. On review of a § 2254 petition, the Court is not, however, tasked with determining whether a movant's conviction or sentence is unconstitutional based on the current state of the law; rather, it must determine whether state court's decision of the claim resulted in a decision that was contrary to or involved an objectively unreasonable application of clearly established federal law at the time the state court rendered its decision.

         Even under this exacting standard, and giving the state court the benefit of the doubt - as this Court is required to do under § 2254(d)'s deferential standard - the Court finds that the state court's conclusion that Petitioner's sentence did not violate Blakely was contrary to clearly established federal law. In denying Petitioner's Blakely claim, the state court relied upon Gomez I's holding that the Reform Act was not unconstitutional under Blakely; Gomez I concluded that, in light of Booker, the Reform Act could not offend the Sixth Amendment because it did not require the sentencing judge to increase a sentence upon finding an enhancement factor. This analysis, however, essentially ignored the primary holding of Blakely:

[T]he relevant ‘statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment, … and the judge exceeds his proper authority.

Blakely, 542 U.S. at 303-04 (internal citation and quotation marks omitted). Indeed, it also ignored the fact that, in Booker, the Supreme Court expressly “reaffirm[ed] [its] holding in Apprendi: Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Booker, 543 U.S. at 244.

         Thus, at the time that the state court reviewed Petitioner's Blakely claim, it was a matter of clearly established federal law that the Sixth Amendment right to trial by jury is violated when a judge imposes a sentence in excess of the relevant statutory maximum based on additional findings of fact that were not admitted by the defendant or proved to the jury beyond a reasonable doubt. Nonetheless, Tennessee's courts concluded that the Reform Act did not conflict with the Sixth Amendment, despite the fact that sentencing judges were permitted to enhance the presumptive mid-range - the relevant statutory maximum, as defined by Apprendi and Blakely - based on independent judicial findings of fact.

         Such a result was contrary to the governing legal principles set forth in Apprendi, Blakely, and Booker. Indeed, the Supreme Court said as much in Cunningham, expressly stating that its Apprendi jurisprudence “leave[s] no room” for the interpretation adopted by the Tennessee Supreme Court in Gomez I. Had the state court applied the correct governing principles of Apprendi, Blakely, and Booker, it would have had no choice but to conclude that a Blakely error occurred when Petitioner's sentence was enhanced ...


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