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Tarvin v. State

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

August 8, 2017

COREY TARVIN, Petitioner,
v.
STATE OF TENNESSEE and DEBRA K. JOHNSON, Respondents.

          MEMORANDUM OPINION

          CURTIS L. COLLIER UNITED STATES DISTRICT JUDGE.

         This is a pro se prisoner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 [Doc. 1]. Respondents filed a response in opposition thereto, as well as a copy of the state record [Docs. 18 and 19]. For the reasons set forth below, Petitioner's § 2254 petition [Doc. 1] will be DENIED and this action will be DISMISSED.

         I. PROCEDURAL HISTORY

         A Hamilton County jury found Petitioner guilty of one count of first-degree murder [State Court Record p. 16]. Petitioner appealed and the Tennessee Court of Criminal Appeals (“TCCA”) affirmed the conviction. State v. Tarvin, No. E2007-01927-CCA-R3-CD, 2009 WL 311565, at *6 (Tenn. Crim. App. Feb. 6, 2009). Petitioner filed a petition for post-conviction relief, which the post-conviction court denied [State Court Record p. 824-837]. The TCCA affirmed this denial. Tarvin v. State, No. E2012-01211-CCA-R3-PC, 2014 WL 259675, at *22 (Tenn. Crim. App. Jan. 22, 2014), perm. app. denied (Tenn. Feb. 12, 2014).

         II. BACKGROUND

         The following factual background is taken from the TCCA's opinion on direct appeal of Petitioner's conviction:

At the defendant's May 22-25, 2007, trial, Officer Matthew Talley of the East Ridge Police Department testified that on June 15, 2005, . . . at 12:07 a.m., he received a call that there was an apparent gunshot victim lying in the middle of the street in the 600 block of North Holly. He stated that when he and his fellow officers responded to that location, they saw a large crowd in the middle of the street and the victim lying in the street partially on his side with his face down. He testified that, according to the report he had prepared, witnesses at the scene reported that an unknown suspect had fled the area in a blue Blazer. On cross-examination, he acknowledged that his report indicated that witnesses also stated that the victim and the defendant had been arguing before the shooting.
Detective Gregory Mardis of the Chattanooga Police Department testified that he was an investigator with the crime scene unit and responded to the scene of the shooting at 1:19 a.m. on June 15, 2005. He stated that when he arrived, another investigator related that the defendant and the victim had gotten into an argument, that a fight had ensued, and that the defendant had retrieved a gun from his vehicle, shot the victim, and fled the scene. Detective Mardis identified a number of items that were subsequently admitted into evidence, including crime scene photographs that showed where the victim's blood had “puddled up on the street[.]” He stated that he searched the area but was unable to locate any weapon.
Lottie Stamper, who said she lived at 609 North Holly Street and had known the defendant for years, testified that on the night of the shooting, the defendant and a number of other individuals were “hanging out” in the vicinity of Larry Harper's duplex located at 618 North Holly. She said that another neighborhood resident known as Greg or “Fat Boy” spoke to the defendant's girlfriend and that the defendant became angry, telling him that he could not be “hollering at [his] bitch like that.” She stated that the two men exchanged words and then began fighting. She testified that two other men, Ladarius and Cornelius, became involved and that the victim, who was visiting his aunt at 614 North Holly, walked down the street to attempt to break up the fight. She said the victim was unsuccessful, walked back to his aunt's house, and went inside. She testified that the victim then came out of his aunt's house and walked to his car, talking about his “Game Boy.” She stated that the defendant and the other men were no longer fighting at that time but were still down the street at Harper's house arguing.
Stamper described the shooting:
[The victim] went in the car, he was bent over in the car. As he came out [of] the car, we was sitting on the corner. By that time, [the defendant] came out of [Harper's] house and somebody said “Gun!” Everybody . . . left the street so fast, and . . . me and one of my neighbors . . . said at the same time, “Somebody going to get shot.” By that time, [the victim] had, you know, one knee in the car . . . . And he's coming out. As he turned, [the defendant] was coming up the street with the gun, fired the shot, [the victim] fell, everybody had scattered.
Stamper further testified as follows. She went to the victim and began applying pressure to his wound. As she did so, he kept asking what he had done and why had he been shot. She was still with the victim when the defendant drove down the street toward them in a sports utility vehicle, and she overheard him say, “I'm going to run over that motherf-----.” She put herself in front of the victim and told the defendant not to do it. He paused a minute, said, “I should have ran over that motherf-----, ” and then drove off.
Stamper testified that she did not tell the police that the victim was involved in the argument or the fight and suggested that either the police officer who took her statement misunderstood her or that she misspoke and said the victim's name when she meant to say Greg. She stated that she saw the defendant go to his vehicle at some point between the fight and the shooting but that she did not see him retrieve a gun from the vehicle. She said the defendant was the only one she saw with a gun that night. Finally, she testified that although the defendant had grown up with her children and been “just like a son, ” she felt obligated to testify against him because she had witnessed him kill the victim.
On cross-examination, defense counsel played a portion of Stamper's tape-recorded statement to police, made within a few hours of the shooting. Stamper acknowledged that she said in the statement that the victim and the defendant were arguing over a girl and got into a fight and that the victim's cousins attempted to break up the fight. She further acknowledged that she never said anything in her statement about the victim's having gone to retrieve something from his car, instead telling the police officer that the victim was walking away from the fight when he was shot. She explained the discrepancies by stating that she might have said anything in the immediate hours after the shooting and insisted that the account she provided on direct examination was accurate. She testified, “Like I said, when the boy got shot, I could have said anything. I don't know. I hear what's on there and I understand what's on there, but I'm telling you what happened, the way it happened.”
The victim's cousin, Antoin Edwards, testified that he was twelve years old at the time of the shooting and that he had been playing video games that night with the victim at his aunt's house, where two other cousins, Ladarius and Cornelius, were present. He said that he heard voices outside and that the victim and Cornelius left the house. He stated that the voices got louder and that he looked out the window and saw the defendant shoot the victim in the back. He estimated that the men were within a foot of each other when the shot was fired and said that he did not see anything that preceded the shooting.
Homicide Detective James Tate of the Chattanooga Police Department testified that the defendant was arrested at approximately 11:00 a.m. on June 16, 2005, and brought to the “service center” where he and Detective Miller questioned him about the crime. He identified the defendant's waiver of rights form and his tape-recorded statement, which were subsequently admitted into evidence. In the statement, played for the jury, the defendant said that he and Gregory Scott got into a fight after Scott “disrespected” the defendant's girlfriend. He said that after three or four minutes of one-on-one fighting, two to four other men jumped in, ganged up on him, and tore off his shirt. The defendant stated that he told the men the fight was over and that they broke loose, letting him go. He said that he was walking away when he noticed a second group of people headed down the street toward him. He stated that he “made up [his] mind, ” went to the porch of a duplex, retrieved a hidden gun, turned around, and fired at the victim, who had been following him and who turned and began to run away when he saw that the defendant had a gun. The defendant stated that he had to “rack” the gun in order to fire the shot. He said that he intended to commit an aggravated assault on the victim and did not mean to kill him.
Detective Tate testified that the gun came from the porch of 618 North Holly Street, which was more than twenty yards from where the victim's body was found. He said the defendant had no visible cuts or abrasions on his face or hands during the interview and did not appear to have been in a recent fight. He testified that the defendant never identified the victim as one of the major participants in the altercation. On cross-examination, he acknowledged that the shirt identified as the one the defendant had been wearing on the night of the altercation was torn.
Frank King, Jr., M.D., the Hamilton County medical examiner who performed the autopsy of the victim's body, testified that the cause of death was a gunshot wound in which the bullet entered the victim's body at the left lower back, grazed against the spine, tore the aorta, went through the bowel, and exited at the right anterior abdomen. He classified it as a distant gunshot wound, fired from a distance of two feet or greater, and he said that it entered the body at 45.5 inches above the heel and exited at 44.5 inches above the heel, which meant that it descended one inch from point of entry to point of exit with the body in “anatomic position.” He stated that he observed no fresh injuries to the victim's head, hands, or legs other than those caused by the emergency medical care he received after the gunshot. He testified that he found two fresh abrasions on the back right shoulder, which could be consistent with the victim's having fallen to the pavement after being shot. During his testimony, Dr. King identified several autopsy photographs, which were admitted into evidence and published to the jury. On cross-examination, he acknowledged that the victim's hands had been washed in the emergency room and that he had no way of knowing the exact position of the victim's body, head, or limbs at the time he was shot other than that his lower left back was facing the direction of fire.
The defendant elected not to testify and presented no witnesses in his defense.

State v. Tarvin, 2009 WL at *1-4.

         The following factual background is taken from the TCCA's opinion on appeal of Petitioner's petition for post-conviction relief:

At the post-conviction hearing, counsel testified that he did not subpoena witnesses for the trial, although the Petitioner provided a list of four or five names the Petitioner thought had beneficial information. He said he asked the Petitioner for contact information, but the Petitioner was unable to provide addresses and working telephone numbers. He said he attempted to find the people on the list by going to Holly Street where the killing occurred. He said he and his paralegal tried to find the people on the list by canvassing the neighborhood and talking to people. He denied talking to anyone on the Petitioner's list and said nobody admitted knowing any of them. He said that they were unsuccessful in obtaining contact information for the people on the list and that he did not subpoena them because he could not find them. He said that he asked the Petitioner to identify other people who might provide information about how to find the people on the list but that counsel was still unable to find them.
Counsel testified that he did not have an investigator or request the court to provide funds for an investigator. He said the Petitioner's case was pending at a time when he was responsible for the investigation. He denied that an investigator would have located the people on the list.
Counsel testified that recordings of the Defendant's and the witnesses' statements to the police were provided in the discovery package, and he agreed a recording of Amanda Wynn's statement was included. When asked if he went to the address provided by Ms. Wynn in her statement to the police, he said he pursued any information that might have helped locate the witnesses. He said that in the neighborhood where the shooting occurred, it was common for people to hide because they did not want to participate as witnesses or discuss the case. He said that the difficulty in locating witnesses did not mean he did not look for them and that he was not shocked when he did not find them.
Counsel testified that he did not know if he went to 2305 Barley Street. When he was told Ms. Wynn lived there, counsel said, he would have tried to locate the address. He said that he would have gone to where the address should have been but that he was unsure if it was a “specific address.” He said it was common to be unable to find a house at the address provided by a witness. He said that although he was unsure if a house was located at 2305 Barley Street, he went to the area looking for the address.
Counsel testified that he twice discussed with the Petitioner his inability to locate the people on the list and that they discussed his inability to find the people “within a reasonable proximity of the time.” He said that his inability to locate them was not the reason he chose not to present a self-defense theory. He said he discussed with the Petitioner his decision not to argue self-defense at the trial. He said he explained to the Petitioner that he could be convicted of first degree murder, second degree murder, or manslaughter. He explained the elements of each offense and the likelihood of conviction and told the Petitioner that he believed the Petitioner was most likely to be convicted of second degree murder, although the jury convicted the Petitioner of first degree murder. Counsel stated that the Petitioner did not want to accept any plea offer that would result in a nineteen-year prison sentence. He said the Petitioner stated, “If I'm going to get that time, they're going to have to give it to me. I'm not going to take it.” He believed the Petitioner thought the worst possible outcome was a voluntary manslaughter conviction and a nineteen-year sentence and said he attempted to explain to the Petitioner that “he had a lot of exposure.” He said the Petitioner disagreed.
Counsel testified that he discussed with the Petitioner whether the Petitioner should testify at the trial. He denied the theory of the case was self-defense and said the Petitioner told him that he was involved in a fight with a group of people but left the scene, returned with a weapon, and shot the victim. He said this was consistent with the Petitioner's statement to the police, which was played for the jury. He said the Petitioner's leaving the scene after the fight prevented a self-defense theory. He said that in his opinion, it was unwise for the Petitioner to testify. He agreed the Petitioner referred to multiple fights in his statement to the police but said the Petitioner discussed “breaking away” from a fight and obtaining a weapon, preventing a self-defense theory. He agreed that the Petitioner's baseball jersey was torn during the fight and said that the tear was significant because the material was strong and durable. He said he used this evidence, in part, to show the Petitioner's state of mind at the time of the shooting and that the Petitioner was not operating with a “clear head” or premeditation. He said that he did not request a self-defense jury instruction because the facts did not support it and because self-defense was not the trial strategy.
Counsel testified that he did not recall if the box cutter found at the scene was introduced at the trial. He said it was difficult to link the box cutter to someone involved in the fight who used it against the Petitioner. He did not recall questioning before the trial the police officer who testified about the box cutter. He denied that the box cutter was analyzed for fingerprints and said he did not address the failure to have it analyzed at the trial because he could not “place the box cutter in any particular person's hands.”
Counsel testified that they discussed the Petitioner's testifying at the trial on “a number of occasions” before the trial and after the State's case-in-chief. He advised the Petitioner not to testify and said he always discussed with his clients that counsel made certain decisions during the trial and that the defendant made certain decisions. He said he explained that the trial strategy of focusing on the Petitioner's state of mind rather than arguing self-defense was counsel's decision and that the decision to accept a plea offer and whether to testify at the trial belonged to the Petitioner. He said the Petitioner understood that he thought the Petitioner should accept a plea offer and that he did not recommend the Petitioner testify at the trial. He said the Petitioner understood that it was his decision to testify and that he could testify if he disagreed with counsel's recommendation. Counsel believed the Petitioner's testimony would have harmed the case because the Petitioner risked having his criminal history introduced at the trial. He said that the Petitioner knew the defense was not calling any witnesses when he made his decision not to testify.
Counsel testified that aspects of the Petitioner's statement to the police were not “fleshed out as perhaps they could have been if he testified.” He said, though, that having a witness testify about one favorable topic did not justify presenting the witness at the risk of having numerous unfavorable topics addressed on cross-examination. He said that the Petitioner could have “fleshed out some things” had he testified but that his testimony would not have been materially different from his statement to the police. He said, too, that cross-examination regarding the Petitioner's criminal history would have “overshadowed” any favorable testimony regarding the events leading to the shooting. He denied the Petitioner told him that after he obtained the gun, the victim stood behind him and two other people stood in front of him. He did not recall whether Ms. Wynn testified similarly at the trial. He recalled that the victim stood behind the Petitioner and that the Petitioner turned and shot the victim in the back, but he did not recall two men standing behind the Petitioner.
Counsel testified that he knew about the Petitioner's eye condition, macular degeneration, and that evidence of the condition was not introduced at the trial. He agreed his trial strategy was to obtain a conviction for voluntary manslaughter but denied that the condition would have been helpful. He said the testimony showed that the Petitioner thought someone was coming toward him, that the Petitioner fired the gun, and that the victim was shot in the back. He said that there “were issues” about the distance between the victim and the Petitioner and that testimony showed the Petitioner was not able to identify clearly whom he shot. Counsel did not think it mattered that the Petitioner had macular degeneration because the testimony showed that the Petitioner “was just shooting at a form, an object that he saw[.]” He denied that the Petitioner's eye condition might explain why the Petitioner did not know if he shot someone who was facing him or had their back to him.
Counsel testified that he recalled cross-examining Lottie Stamper but did not recall asking about her two misdemeanor theft convictions that occurred within ten years of the trial. He recalled that Ms. Stamper lived on the street where the shooting occurred and that she held the victim in her arms after he was shot. He said that although he did not recall if he asked Ms. Stamper about the convictions, he did not think the convictions would have changed the jurors' view of her testimony given the emotional nature of her testimony. He agreed Ms. Stamper provided a statement to the police that differed from her testimony. He said he highlighted the discrepancies during cross-examination by playing the relevant portions of her recorded statement to the police. He denied playing her entire statement. He agreed Ms. Stamper testified that the Petitioner stated twice he was going to “run this MFer over.” He did not know why he did not object but said that his usual practice was not to draw attention to statements of that nature because the judge might overrule an objection. He recalled thinking Ms. Stamper's testimony was highly emotional and dishonest.
Counsel testified that Ms. Stamper stated at the trial that the victim only attempted to stop the fight and that she found the victim's gunshot wound by pulling up the victim's shirt. He agreed Ms. Stamper said in her statement to the police that the victim “took off his shirt before he . . . began to fight.” He agreed he did not address the inconsistency at the trial and said he did not think highlighting the inconsistent statement would have changed the jury's verdict because the victim was shot regardless of whether he wore his shirt at the time. He said he highlighted the consistencies that were most relevant to the theory of the case. He recalled that Ms. Stamper was an uncontrollable witness who said what she wanted to say and that he attempted to craft his questions carefully to prevent her from “going off the tracks.” He did not want to object and hear the trial judge say, “You asked the question.”
Counsel testified that he did not request special jury instructions regarding witness credibility and said the standard instruction was given. He said he reviewed the pattern jury instructions before the trial and determined which instructions he needed to request. He did not recall asking for a special instruction regarding witnesses convicted of crimes of dishonesty but said even if the jury discredited Ms. Stamper's testimony in its entirety, the outcome of the trial would have been the same because of the Petitioner's statement to the police. He agreed, though, that Ms. Stamper was the only witness who testified that the Petitioner said, “I should run that Mfer over.” He agreed that Ms. Stamper testified that she either got in front of the car or protected the victim with her body and that the Petitioner said he should run over the victim. He agreed the implication was that the Petitioner was driving the car. He agreed he did not question her about the Petitioner's eye condition and said he knew she did not know about the Petitioner's macular degeneration because he spoke with her before the trial. He said that Ms. Stamper had known the ...

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