United States District Court, M.D. Tennessee, Nashville Division
A. TRAUGER, UNITED STATES DISTRICT JUDGE
petitioner, Robert Dee Scribner, II, a state inmate, filed
this pro se action under 28 U.S.C. § 2254,
seeking the writ of habeas corpus to set aside his state
conviction for raping a child under the age of thirteen.
(Docket Entry No. 1). The court appointed the Federal Public
Defender to represent the petitioner and permitted the filing
of an amended petition. (Docket Entry Nos. 28, 47). The court
later granted appointed counsel the opportunity to obtain
discovery. (Docket Entry No. 59). The petitioner then filed a
Second Amended Petition (Docket Entry No. 79), in which the
petitioner asserts the following claims: (1) the evidence at
his trial was insufficient to support a conviction; (2) trial
counsel was ineffective for failing to present any evidence
regarding the petitioner's subjective awareness of the
child's age, including failing to object to the
State's motion in limine that precluded counsel from
presenting or eliciting testimony about the petitioner's
lack of knowledge of the child's age; (3) state
post-conviction counsel was ineffective for failing to assert
that trial counsel was ineffective for failing to present any
evidence regarding the petitioner's subjective awareness
of the child's age; and (4) the State withheld material,
exculpatory evidence, in violation of Brady v.
Maryland, 373 U.S. 83 (1963). Id. at 14, 15,
18. The petitioner also asserts that the Second Amended
Petition incorporates all other claims raised in the
petitioner's pro se petition by reference and
supplements, but does not supersede, the initial petition.
Id. at 23.
the court is the respondent's Motion to Dismiss (Docket
Entry No. 84) and proposed findings of fact and conclusions
of law (Docket Entry No. 104). The respondent contends that
the petitioner's claims are time-barred and that he has
failed to show good cause for equitable tolling or that he is
actually innocent. (Docket Entry No. 85, at 1). As to the
Brady claim, the respondent also contends that the
petitioner's Brady claim fails because the
petitioner cannot show that the evidence was suppressed,
exculpatory or impeaching, or that he suffered prejudice.
(Docket Entry No. 104, at 1, 21). In his response (Docket
Entry No. 88) and proposed findings of fact and conclusions
of law (Docket Entry No. 105), the petitioner contends: (1)
that the respondent waived the statute of limitations defense
for his non-Brady claims, and the court should
consider this claim in the interests of justice; (2) that the
evidence was insufficient for his conviction for the rape of
a child; (3) that trial counsel rendered ineffective
assistance of counsel for failing to object to the
State's motion in limine precluding him from presenting
or eliciting testimony about the petitioner's lack of
knowledge as to the child's age and that post-conviction
counsel was ineffective for failing to raise this issue
before the state courts; and (4) that the petitioner has
established the elements of a Brady violation.
(Docket Entry No. 105, at 26, 30, 13-15, 19-23).
August 29, 2007, a Davidson County Criminal Court jury
convicted the petitioner of rape of a child, for which the
petitioner was sentenced to sixteen (16) years of
imprisonment to be served at 100 percent. (Docket Entry No.
31-1 at 65-66, 72). The Tennessee Court of Criminal Appeals
affirmed the petitioner's conviction and sentence.
State v. Turner, No. M200800253CCAR3CD, 2009 WL
648963, at *1 (Tenn. Crim. App. Mar. 12, 2009). On August 17,
2009, the Tennessee Supreme Court denied the petitioner's
application for permission to appeal. Scribner v.
State, No. M2011-00229-CCA-R3-PC, LEXIS 485, at *2
(Tenn. Crim. App. June 19, 2012).
January 11, 2010, the petitioner filed a pro se
post-conviction petition in the Criminal Court for Davidson
County, followed by appointment of post-conviction counsel
and the filing of an amended petition on June 16, 2010.
Id. at *4. The state trial court conducted an
evidentiary hearing and, on December 2, 2010, it denied the
petitioner's petition for post-conviction relief.
Id. at *4-6. On June 19, 2012, the Tennessee Court
of Criminal Appeals affirmed the trial court's denial of
post-conviction relief. Id. at *1. On October 17,
2012, the Tennessee Supreme Court denied the petitioner's
application for permission to appeal. Id.
October 16, 2013, the petitioner filed his pro se
federal habeas petition. (Docket Entry No. 1, at 47). On July
28, 2014, the petitioner's court appointed counsel filed
an Amended Petition (Docket Entry No. 47). On January 16,
2015, the court granted appointed counsel permission to seek
discovery from the Metropolitan Nashville Police Department
(“MNPD”) and the Tennessee Department of
Children's Services (“DCS”). (Docket Entry
No. 59). The respondent produced requested documents to the
petitioner on or around April 15, 2015. (Docket Entry No. 94,
at ¶ 5). On July 24, 2015, the court granted the
petitioner's motion to file a Second Amended Petition,
which was accompanied by trial counsel's sealed
declaration and six attachments, five of which the petitioner
alleges were withheld in violation of Brady. (Docket
Entry No. 79). On August 28, 2015, the respondent filed a
Motion to Dismiss (Docket Entry No. 84) and, after being
granted an extension of time to respond, on September 18,
2015, the petitioner filed his response. (Docket Entry Nos.
87 and 88).
January 15, 2016, the court ordered an evidentiary hearing on
the petitioner's “Brady claim that may
toll the applicable statute of limitations.” (Docket
Entry No. 89). On March 15, 2016, the court conducted the
evidentiary hearing. (Docket Entry No. 96). The parties filed
their proposed findings of fact and conclusions of law on
July 11, 2016. (Docket Entry Nos. 103-105). Due to the
retirement of Judge Haynes on January 16, 2017, and pursuant
to Administrative Order No. 138, this action was transferred
to the undersigned. (Docket Entry No. 106).
REVIEW OF THE STATE COURT RECORD
petitioner's direct appeal, the Tennessee Court of
Criminal Appeals found the following facts:
The defendants, Eric D. Turner and Robert Dee Scribner, II,
were indicted by the Davidson County Grand Jury in a
three-count indictment for rape of a child, a Class A felony,
with Scribner charged with two counts and Turner charged with
. . . .
This case arises out of the defendants' January 24, 2006,
sexual encounter with the twelve year-old victim, A. D.
According to the State's proof at trial, the victim
became acquainted with twenty-three-year-old Turner and his
twenty-two-year-old cousin, Scribner, through an adult chat
line. On January 24, 2006, by prearrangement with the victim,
the men picked up the victim from the street near her home
and took her to Turner's house. Both men engaged in
sexual activity with the victim at Turner's house and
then took her back to her own home. Confronted by her mother
that evening, the victim initially admitted to penile-vaginal
intercourse with Scribner. A criminal investigation ensued,
and she eventually admitted that she had engaged in sexual
intercourse with both defendants during the January 24, 2006,
episode at Turner's home.
At the defendants' August 27-28, 2007, joint trial, Metro
Police Sex Crimes Detective Heather Baltz testified that she
went to the victim's home on January 24, 2006, in
response to a patrol officer's report of a child that
might have been involved in a criminal sexual situation.
After speaking with the victim and her mother, she
accompanied the victim to the hospital, where a physical
examination was performed and evidence collected for a rape
kit. Detective Baltz stated that she took custody of the rape
kit evidence and followed the standard practice of booking it
into the Metro Police Property Room, where it was assigned a
case number that was on all the paperwork connected with the
evidence. She then transported the evidence to the Tennessee
Bureau of Investigation (“TBI”) laboratory for
analysis, where the TBI assigned its own internal reference
numbers to it.
Detective Baltz testified that the victim provided her with
the nicknames, “Kelondo” and “Little Daddy,
” later identified as Turner and Scribner,
respectively. The victim initially mentioned only that she
had engaged in penile-vaginal intercourse with Scribner but,
during the course of her subsequent interviews, which
occurred on February 10, February 14, and April 13, stated
that she had sexual intercourse with both men. Detective
Baltz testified that she interviewed each defendant, using a
casual, non-confrontational approach designed to get them to
open up about the incident. She laid out the victim's
allegations to Turner, “present[ing] it as if they did
have sex.” He did not deny it, and when she asked
Turner if he had used a condom, he replied that he did not
remember. She took the same approach with Scribner, who
ultimately acknowledged that he had oral sex with the victim
but continued to deny that he had engaged in vaginal sex with
her. Detective Baltz stated that she collected cheek swabs
from each defendant, which she submitted for DNA analysis.
The tape recording of both interviews was played aloud for
the jury and admitted into evidence.
On cross-examination, Detective Baltz acknowledged that each
man expressed surprise, with Scribner appearing
“extremely surprised, ” when she revealed the
victim's age. She further acknowledged that the victim
initially told her that she first met Turner at a convenience
store, called Scribner to come pick her up, and had vaginal
intercourse with Scribner. She confirmed that the victim did
not tell her that she had sexual intercourse with Turner
until the February 10 interview and did not admit to having
met him on a chat line, rather than in a store, until the
April 13 interview. She said that the victim explained that
she knew she should not have been on the adult chat line and
was afraid that she would get in trouble for having used it.
Detective Baltz testified that she did not ask the victim on
January 24 if she had sexual relations with Turner but began
to suspect as the night wore on that she had intercourse with
both defendants. She said she interpreted Turner's
statements that he was not going to lie about it and that he
“got with” the victim as an admission that he had
engaged in some type of sexual activity with her. She stated
that when she confronted Scribner with the victim's
allegation that they had sex three times, he denied vaginal
sex but “seemed very comfortable ... admitting oral
sex” until she explained to him that oral sex was a
The victim testified that her date of birth was March 18,
1993, and that she was currently fourteen years old. She said
that she became acquainted with Turner in December 2005 or
January 2006 after calling a chat line advertised on
television and that she told him she was sixteen years old.
She talked to him more than once on the telephone and then
arranged for him to pick her up down the street from her
home. When he arrived, Scribner was in the vehicle with him.
They took her to Turner's house, where all three of them
went into Turner's bedroom and she sat on the bed. Turner
asked her if she wanted to have sex, and she said yes. She
lay down and Turner had sex with her, putting his
“private part” inside her. She then had sex with
Scribner as well, performing oral sex on him and engaging in
vaginal intercourse. She had sex “more than one
time” with both Scribner and Turner that day. Turner
played a pornographic movie on the television during part of
the time she was in his bedroom. Afterwards, both men took
On cross-examination, the victim testified that she had been
talking with Turner on the chat line for about two weeks
before the incident occurred. She had never spoken to
Scribner before meeting him that day. She denied that she
told the men that she was eighteen and employed. She said
that both Scribner and Turner remained in the bedroom during
the entire episode.
Sue Ross, a pediatric nurse practitioner with Our Kids Center
in Nashville, testified that she examined the victim at
General Hospital on January 24, 2006. She said she found
nothing of note in her genital examination of the victim but
explained that was not unusual due to the elasticity of the
tissue in a child who has already gone through puberty. She
collected oral, vaginal, and cervical swabs as part of the
rape kit, and her records reflected that she placed the
evidence in the hospital's lock box for later collection
by the detective investigating the case. Ross identified the
evidence she had collected by, among other things, the
packaging in which she had wrapped it and the hospital seal
she had placed across the envelopes.
TBI Special Agent Forensic Scientist Charles Hardy identified
the rape kit evidence and the defendants' cheek swabs by,
among other things, the Metro Police Department case number,
as well as the TBI case number that was assigned to the
evidence upon its receipt into the TBI Laboratory. He stated
that the evidence receiving section of the laboratory would
not accept evidence that was not sealed. The unsealed rape
kit evidence was boxed and shipped to Bode Technology, a
laboratory in Virginia, for analysis, while he processed the
cheek swabs internally at the TBI Laboratory in Nashville. A
single male profile was obtained from sperm recovered from
the victim's vaginal and cervical swabs, which, upon
comparison, was a “full profile match” to
Scribner's DNA. According to Agent Hardy, the probability
of an unrelated individual from the African-American,
Caucasian, Southeastern, Hispanic, or Southwestern Hispanic
population having the same DNA profile exceeded the current
Shana Mills, a forensic scientist with Bode Technology,
identified the evidence analyzed in her laboratory and
testified that it was sealed when it arrived. She said that
her testing revealed the presumptive presence of sperm on the
vaginal and cervical swabs. She found no sperm on the oral
Sarah Shields, a DNA analyst at Bode Technology, testified
that she isolated the DNA profiles from the victim's
oral, vaginal, and cervical swabs, finding the presence of
the same male DNA on the cervical and vaginal swabs.
The defendants elected not to testify and rested their cases
without presenting any proof.
State v. Turner, No. M200800253CCAR3CD, 2009 WL
648963, at *1-3 (Tenn. Crim. App. Mar. 12, 2009) (footnote
STANDARD OF REVIEW
28 U.S.C. §§ 2254(b) and (c) provide that a federal
court may not grant a writ of habeas corpus on behalf of a
state prisoner unless, with certain exceptions, the prisoner
has presented the same claim sought to be redressed in a
federal habeas court to the state courts. Cullen v.
Pinholster, 563 U.S. 170, 182 (2011). The petitioner
must “fairly present” each claim at all levels of
state court review, up to and including the state's
highest court on discretionary review, Baldwin v.
Reese, 541 U.S. 27, 29 (2004), except where the state
has explicitly disavowed state supreme court review as an
available state remedy. O'Sullivan v. Boerckel,
526 U.S. 838, 847-48 (1999). Tennessee Supreme Court Rule 39
eliminated the need to seek review in that court in order to
“be deemed to have exhausted all available state
remedies.” Adams v. Holland, 330 F.3d 398, 402
(6th Cir.2003), cert. denied, 541 U.S. 956
(2004); see also Smith v. Morgan, 371 F.App'x
575, 579 (6th Cir. 2010) (“Adams not only
requires the federal courts to ensure that the state courts
have the first opportunity to review and evaluate legal
claims ... but also mandates that the federal courts respect
the duly-promulgated rule of the Tennessee Supreme Court that
recognizes the law and policy-making function of that court
and the court's desire not to be entangled in the
business of simple error correction”).
rule has been interpreted by the Supreme Court as one of
total exhaustion. Rose v. Lundy, 455 U.S. 509
(1982). Thus, each and every claim set forth in the federal
habeas corpus petition must have been presented to the state
appellate court. Picard v. Connor, 404 U.S. 270
(1971); see also Pillette v. Foltz, 824 F.2d 494,
496 (6th Cir. 1987) (exhaustion “generally entails
fairly presenting the legal and factual substance of every
claim to all levels of state court review”). Moreover,
the substance of the claim must have been presented as a
federal constitutional claim. Gray v. Netherland,
518 U.S. 152, 162-63 (1996). Fair presentation requires that
the state courts be given the opportunity to see both the
factual and legal basis for each claim. Wagner v.
Smith, 581 F.3d 410, 414 (6th Cir. 2009). For the claim
to be exhausted, it must be presented to the state courts as
a federal constitutional issue, not merely as an issue
arising under state law. Koontz v. Glossa, 731 F.2d
365, 369 (6th Cir. 1984).
in determining whether a petitioner “fairly
presented” a federal constitutional claim to the state
courts, federal courts should consider whether the
petitioner: (1) phrased the federal claim in terms of the
pertinent constitutional law or in terms sufficiently
particular to allege a denial of the specific constitutional
right in question; (2) relied upon federal cases employing
the constitutional analysis in question; (3) relied upon
state cases employing the federal constitutional analysis in
question; or (4) alleged “facts well within the
mainstream of [the pertinent] constitutional law.”
Hicks v. Straub, 377 F.3d 538, 553 (6th Cir. 2004)
(quoting McMeans v. Brigano, 228 F.3d 674, 681 (6th
Cir.2000)). Moreover, the claim must be presented to the
state courts under the same legal theory in which it is later
presented in federal court. Wong v. Money, 142 F.3d
313, 322 (6th Cir. 1998). It cannot rest on a legal theory
that is separate and distinct from the one previously
considered and rejected in state court. Id. This
does not mean that the applicant must recite “chapter
and verse” of constitutional law, but the applicant is
required to make a specific showing of the alleged claim.
Wagner, 581 F.3d at 414.
procedural default doctrine is ancillary to the exhaustion
requirement. See Edwards v. Carpenter, 529 U.S. 446
(2000) (noting the interplay between the exhaustion rule and
the procedural default doctrine). If the state court decides
a claim on an independent and adequate state ground, such as
a procedural rule prohibiting the state court from reaching
the merits of the constitutional claim, a petitioner
ordinarily is barred from seeking federal habeas review.
Wainwright v. Sykes, 433 U.S. 72, 81-82 (1977);
see also Walker v. Martin, 562 U.S. 307, 315 (2011)
(“A federal habeas court will not review a claim
rejected by a state court if the decision of the state court
rests on a state law ground that is independent of the
federal question and adequate to support the
judgment”); Coleman v. Thompson, 501 U.S. 722
(1991) (same). If a claim has never been presented to the
state courts, but a state court remedy is no longer available
(e.g., when an applicable statute of limitations bars a
claim), then the claim is technically exhausted, but
procedurally barred. Coleman, 501 U.S. at 731-32;
see also Hicks v. Straub, 377 F.3d 538, 551 (6th
Cir.2004) (the procedural default doctrine prevents
circumvention of the exhaustion doctrine), cert.
denied, 544 U.S. 928 (2005).
claim is procedurally defaulted, “federal habeas review
of the claim is barred unless the prisoner can demonstrate
cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure
to consider the claims will result in fundamental miscarriage
of justice.” Coleman, 501 U.S. at 750. The
burden of showing cause and prejudice to excuse defaulted
claims is on the habeas petitioner. Lucas v.
O'Dea, 179 F.3d 412, 418 (6th Cir.1999) (citing
Coleman, 501 U.S. at 754).
petitioner can establish cause in two ways. First, a
petitioner may “show that some objective factor
external to the defense impeded counsel's efforts to
comply with the State's procedural rule.”
Murray v. Carrier, 477 U.S. 478, 488 (1986); see
also Coleman, 501 U.S. at 753; Maples v.
Stegall, 340 F.3d 433, 438 (6th Cir. 2003). Objective
impediments include an unavailable claim or interference by
officials that made compliance impracticable.
Murray, 477 U.S. at 488. Second, constitutionally
ineffective assistance of counsel may constitute cause under
certain circumstances. Murray, 477 U.S. at 488-89;
Broom v. Mitchell, 441 F.3d 392, 401 (6th Cir.
2006); Rust v. Zent, 17 F.3d 155, 161 (6th Cir.
1994). In Tennessee, the ineffective assistance of
post-conviction counsel can, under limited circumstances,
establish cause for the default of a claim of ineffective
assistance of trial counsel. Martinez v. Ryan, 566
U.S. 1, 132 S.Ct. 1309, 1320 (2012); Sutton v.
Carpenter, 745 F.3d 787 (6th Cir.2014).
the cause and prejudice standard is not a perfect safeguard
against fundamental miscarriages of justice, the United
States Supreme Court has recognized a narrow exception to the
cause requirement where a constitutional violation has
“probably resulted” in the conviction of one who
is “actually innocent” of the substantive
offense. Dretke v. Haley, 541 U.S. 386, 392 (2004)
(citing Murray, 477 U.S. at 495-96); accord
Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006).
CONCLUSIONS OF LAW
STATUTE OF LIMITATIONS DEFENSE
Antiterrorism and Effective Death Penalty Act
(“ADEPA”) provides a one-year statute of
limitations for § 2254 habeas corpus petitions that runs
from the latest of four dates:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2244(d)(1)(A)-(D). The one-year period is
tolled during the time in “which a properly filed
application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is
pending . . . .” 28 U.S.C. § 2244(d)(2).
one-year statute of limitations may be subject to equitable
tolling, excusing the literal enforcement of the federal
habeas statute of limitations if a petitioner shows
“(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way
and prevented timely filing.” Holland v.
Florida, 560 U.S. 631, 649 (2010) (internal quotation
marks and citation omitted). A “petitioner bears the
burden of demonstrating that he is entitled to equitable
tolling.” Allen v. Yukins, 366 F.3d 396, 401
(6th Cir. 2004). The Supreme Court has also stated that a
“credible showing of actual innocence” may allow
a petitioner to pursue his constitutional claims on the
merits notwithstanding the existence of a procedural bar to
relief. McQuiggin v. Perkins, ___ U.S. ___, 133
S.Ct. 1924, 1931 (2013). “‘[A]ctual
innocence' means factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523
U.S. 614, 623 (1998). A petitioner must show “‘it
is more likely than not that no reasonable juror would have
convicted [the petitioner] in the light of the new
evidence.'” McQuiggin, 133 S.Ct. at 1935
(quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
petitioner's state court conviction became final on
November 15, 2009, ninety (90) days after August 17, 2009,
when the Tennessee Supreme Court denied permission to appeal.
Pinchon v. Myers, 615 F.3d 631, 640 (6th Cir. 2010).
Thus, the petitioner's one-year limitations period under
AEDPA began to run on November 15, 2009. The limitations
period was tolled after fifty-seven (57) days, upon the
filing of his post-conviction petition on January 11, 2010.
The limitations period resumed on October 17, 2012, when the
Tennessee Supreme Court denied permission to appeal.
Lawrence v. Florida, 549 U.S. 327, 332 (2007)
(“The application for state postconviction review is .
. . not ‘pending' after the state court's
postconviction review is complete, and § 2244(d)(2) does
not toll the 1-year limitations period during the pendency of
a petition for certiorari.”); Tyler v. Ray,
610 F. App'x 445, 452 (6th Cir.), cert.
denied sub nom. Tyler v. Schofield, 136
S.Ct. 239 (2015) (under Tennessee law state post-conviction
relief is no longer pending on the date of the Tennessee
Supreme Court's decision, not the date of the mandate).
Therefore, the petitioner's one-year limitations period
expired on August 21, 2013. The petitioner filed his pro
se petition in this action on October 16, 2013,
approximately fifty-seven (57) days after the expiration of
his limitations period.
petitioner agrees to this calculation of the statute of
limitations. (Docket Entry No. 105, at 25) The petitioner
does not argue that equitable tolling applies or that he is
actually innocent. However, the petitioner argues that the
statute of limitations is an affirmative defense that the
respondent waived by stating in its answer that the
petitioner's petition was timely filed. (Docket Entry No.
105, at 25). The petitioner argues that the interests of
justice would be better served by addressing his claims.
Id. at 26.
answer, the respondent initially stated that “[t]his is
his first petition for habeas corpus relief under 28 U.S.C.
§ 2254 and it is timely filed.” (Docket Entry No.
27, at 2). However, in its first Motion to Dismiss, the
respondent asserted that the petition was time-barred by the
one-year statute of limitations period under 28 U.S.C. §
2244(d), stating that “[t]he State inadvertently failed
to assert this affirmative defense in its initial response to
the petitioner's pro se petition.” (Docket
Entry No. 55, at 1 n.1). The respondent argues that the
petitioner's habeas claims should not be deemed timely
simply because of counsel's inadvertent error, where the
record does not suggest that the State
“strategically” withheld the statute of
limitations defense or chose to relinquish it. (Docket Entry
No. 85, at 5).
AEDPA statute of limitation promotes judicial efficiency and
conservation of judicial resources, safeguards the accuracy
of state court judgments by requiring resolution of
constitutional questions while the record is fresh, and lends
finality to state court judgments within a reasonable
time.'” Day v. McDonough, 547 U.S. 198,
205-06 (2006) (quoting Acosta v. Artuz, 221 F.3d
117, 123 (2d Cir. 2000)). The Supreme Court has held that
“district courts are permitted, but not obliged, to
consider, sua sponte, the timeliness of a state
prisoner's habeas petition.” Id. at 209.
To be sure, “before acting on its own initiative, a
court must accord the parties fair notice and an opportunity
to present their positions.” Id. at 210. A
court must also “assure itself that the petitioner is
not significantly prejudiced by the delayed focus on the
limitation issue, and ‘determine whether the interests
of justice would be better served' by addressing the
merits or by dismissing the petition as time barred.”
Id. Affirming the district court's dismissal, on
its own initiative, of a state prisoner's petition for a
writ of habeas corpus as untimely, the Supreme Court in
Day noted that “nothing in the record suggests
that the State ‘strategically' withheld the defense
or chose to relinquish it, ” and that the record
reflected that “there was merely an inadvertent error,
a miscalculation that was plain under Circuit
precedent.” Id. at 211.
the record reflects that the respondent's failure to
raise the timeliness defense was the result of inadvertent
error and that the interests of justice would be better
served by dismissing the petitioner's insufficiency of
the evidence and ineffective assistance of counsel claims, as
well as the claims raised in his pro se petition, as
time barred. Soule v. Palmer, No. 08-CV-13655, 2013
WL 450980, at *3 (E.D. Mich. Feb. 5, 2013) (“Mere
inadvertence on the part of the respondent in failing to
raise this defense at the first opportunity does not
establish ‘bad faith' or undue prejudice to
petitioner nor does it establish an intelligent or deliberate
waiver of that defense.”) (citing Sudberry v.
Warden, Southern Ohio Correctional Facility, 626
F.Supp.2d 767, 782 (S.D. Ohio 2009)).
the court concludes that the petitioner's insufficiency
of the evidence and ineffective assistance of counsel claims
and the petitioner's claims in his pro se
petition are time barred and will be dismissed.
petitioner contends that the State withheld material,
exculpatory evidence, in violation of Brady v.
Maryland, 373 U.S. 83 (1963). Specifically, the
petitioner contends that documents from DCS and the MNPD were
not disclosed to appointed counsel until after the
commencement of this federal action and the expiration of the
statute of limitations. The petitioner asserts that these
documents from DCS and the MNPD reflect evidence of the
sexual history of A.D., the child victim, and evidence that
A.D. convincingly lied to adults. (Docket Entry No. 105, at
14, 20). The petitioner's argument is that “[t]he
withheld evidence would have demonstrated to the jury that
A.D. acted ‘older' than her 12 years and 10 months
in two ways: she was considerably more sexually experienced
than one would expect for her age, and she was a much more
convincing liar than her ‘hesitant demeanor' on the
stand suggested.” Id. at 23. The petitioner
also argues that the withheld evidence would have been
valuable in convincing the trial judge to issue a clearer
jury instruction, which trial counsel requested. Id.
respondent contends that the petitioner cannot show that the
allegedly suppressed information (1) was improperly withheld;
(2) was exculpatory or impeaching; or (3) that the evidence
could reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict
when viewed with the entire record. (Docket Entry No. 104 at
Relevant Facts and Background
to trial, the petitioner was originally represented by
Michael Colavecchio. (Docket Entry No. 96, Federal
Evidentiary Hearing Transcript, at 6). During the discovery
phase, Colavecchio submitted a discovery request to the
State, requesting, among other things, that “[i]n
accordance with Brady v. Maryland, 373 U.S. 83
(1963), all items of exculpatory nature, if any there be will
be furnished to defense counsel if and when any such item or
information becomes known to the State.” (Docket Entry
No. 96, at 8; Docket Entry No. 88-1, at ¶ 7). The State
responded, “None known at this time.” (Docket
Entry No. 88-1, at ¶ 7). A conflict later arose between
the petitioner and Colavecchio, and the trial court appointed
David M. Hopkins to represent the petitioner. (Docket Entry
No. 96, at 6). At the federal evidentiary hearing, Hopkins
testified that the State did not provide any additional
Brady evidence in discovery. Id. at 9.
pretrial motions, the State filed a motion in limine
requesting that the court “instruct defense counsel not
to ask any questions or make statements before the jury at
any stage including voir dire and opening statement relating
to any prior sexual activity of the victim” under Rule
412 of the Tennessee Rules of Evidence. (Docket Entry No.
31-1, motion in limine No. 2, at 17). As to the trial
court's granting of this motion, the trial record
reflects the following:
THE COURT: . . . . That motion will have to be granted. I
don't think you can get into that.
MR. HOPKINS: Could I be heard on that just briefly. Should -
should the witness, [A.D.] testify to the contrary, of
course, she would be allowed to be impeached if she had
actually had prior activity.
. . . .
MR. HOPKINS: If she testifies, that, no, I've never had
any prior sexual activity, but, when there's proof that
THE COURT: In other words, if she opens ...