United States District Court, E.D. Tennessee, Knoxville
L. COLLIER, UNITED STATES DISTRICT JUDGE.
a counseled second amended petition for a writ of habeas
corpus under 28 U.S.C. § 2254, filed on behalf of
Petitioner Tony Fulton Wells [Doc. 6]. Raising two main
grounds for relief, Petitioner is challenging the
constitutionality of his confinement under a 2012 state court
judgment convicting him of second-degree murder
has filed an answer to the pleading [Doc. 13] and has
attached thereto the state court record [Doc. 12, Notice of
Filing Documents, Attachments 12-1 through 12-11]. Respondent
argues that four of the claims asserted in Petitioner's
two primary grounds for relief have been procedurally
defaulted. The remaining claims, so Respondent argues, do not
warrant habeas corpus relief because the TCCA adjudicated
those claims and reached a decision that was not contrary to
or an unreasonable application of the governing Supreme Court
has not filed a reply, and the time for doing so has passed.
See E.D. Tenn. L.R. 7.1(a). For the reasons that
follow, the second amended petition will be
April 2, 2012, in the Criminal Court for Union County,
Tennessee, Petitioner entered a plea of nolo contendere to
one count of second-degree murder, a Class A felony, and
received the recommended punishment for that offense of
25-year's imprisonment [Doc. 12-2, Plea Hr'g Tr. pp.
8 and 31]. Petitioner did not file an appeal. Rather,
Petitioner filed a petition for post-conviction relief, but
the post-conviction court denied his petition. Wells v.
State, No. E2015-00463-CCA-R3-PC, 2016 WL 656616, at *1
(Tenn. Crim. App. Feb. 17, 2016), perm. app. denied,
(Tenn. 2016). The Tennessee Court of Criminal Appeals
(“TCCA”) affirmed the judgment of the
post-conviction court and, on June 23, 2016, the Tennessee
Supreme Court denied Petitioner permission to appeal
[Id.]. Petitioner next filed an initial § 2254
petition and an amended § 2254 petition [Docs. 1 and 3],
but this Court found that both such petitions were
insufficient [Docs. 2 and 5]. Petitioner then submitted the
second amended petition for habeas corpus relief [Doc. 6],
which is now ripe for disposition.
facts that led to Petitioner's plea and conviction are
set forth in the opinion of the TCCA.
The State . . . introduced statements from the victim's
two sons, the victim's neighbor Linda Griffey, and two
statements the petitioner made to police as a summary of the
evidence against the petitioner. According to the statements,
the petitioner lived with the victim and her two sons, D.C.
and T.W., and he was the boys' stepfather. Prior to the
shooting, the petitioner had been unemployed for several
weeks and was “stressed” about his inability to
find a job. The petitioner had a Ruger P 89 pistol that he
showed the victim's older son, D.C., how to use on the
evening of the shooting. Throughout the evening, the
petitioner was drinking vodka. When the boys went to bed, the
petitioner was alone in the living room with the victim. He
began “talking crazy stuff, ” and the victim
appeared to fear for her safety. The victim was on the couch,
and the petitioner picked up his Leatherman knife and said
that if he wanted to hurt the victim or her sons, he would
have already done so.
From his bedroom, T.W. heard the victim crying in the living
room. He went into the kitchen, and he saw the victim lying
on the couch and the petitioner standing over her with an
envelope opener. He returned to his bedroom and told his
brother that he believed that the petitioner stabbed the
victim. While in his bedroom, T.W. overheard the petitioner
tell the victim twice to sit down.
Back in the living room, the petitioner told the victim to be
quiet. He leaned toward her with the knife in his hand. As he
leaned forward, the victim raised her hand, and the
petitioner cut a finger on her right hand. The petitioner
placed his right hand on the couch, and the knife punctured
the cushion. Upset that he cut the couch and that the victim
was afraid, the petitioner sat down on the couch and took
several drinks of vodka. While on the couch, he picked up the
pistol and “racked” it. He stood up and walked
between the coffee table and the television. The petitioner
claimed that he was planning to de-cock the pistol, and he
had his finger on the trigger and his thumb on the hammer.
His thumb never grasped the top of the hammer, and the gun
went off, shooting the victim in the head. The petitioner
pulled the victim onto the floor and began repeating her
D.C. and T.W. heard the gunshot and ran into the living room.
D.C. smelled gun powder, and both boys saw the victim lying
on the floor. D.C. ran out of the house and called the
police, and the petitioner told T.W. to call their neighbor,
Russell Riffey. Ms. Griffey, was awakened by her son around
12:30 or 1:00 a.m. on the date of the shooting, before T.W.
was able to call their home. Ms. Crriffey's son told her that
something was wrong at the victim's home and that the
victim's sons “were screaming and running in the
yard.” She received a call from T.W., and she told him
to hang up so that she could call 9-1-1. She called 9-1-1,
and Mr. Riffey left to go to the victim's home. Ms.
Crriffey saw Mr. Riffey wrestling with the petitioner on the
porch of the victim's home, and she learned from a
hysterical T.W. that the victim had been shot in the head.
Ms. Griffey went to the victim's home and took T.W. back
to her home. Ms. Crriffey looked back and saw that police had
arrived and that they and her husband were still struggling
with the petitioner. Ms. Griffey saw the petitioner being
placed in a police car and shouting to tell the victim that
he would find employment “and everything would be all
The State also said it planned to call Dr. Christopher
Lockmuller, a forensic pathologist, who would have testified
that at the time of the shooting, the petitioner had to have
been within three feet of the victim. Dr. Lockmuller also
would have testified consistently with the autopsy report,
which showed that the victim had a single gunshot wound to
the head associated with severe injury to the brain and
skull. There was a “very shallow cut” on the
third finger of the victim's left hand, along with five
“linear abrasions.” Additionally, there were
minor abrasions on the victim's body.
At the conclusion of the summary, the trial court asked the
petitioner if he contested any of the evidence that the State
submitted. The petitioner responded that he contested
“[s]ome of it.” When asked to specify his
objections, the petitioner responded, “On the things
that was said on the second statement after I asked for a
lawyer, they continued to question me and everything
else.” Trial counsel clarified for the petitioner that
the trial court was asking whether he specifically contested
what the State said their proof would be. After a conference
with trial counsel, the petitioner stated that he did not
contest the evidence. The trial court found the petitioner
guilty of second degree murder and imposed a twenty-five-year
Wells, 2016 WL 656616, at *1-2 (footnote omitted).
lists two primary grounds for relief, with each ground
containing several claims [Doc. 6 at 5, 7, and 16].
Petitioner was denied effective assistance of counsel and due
process of law, in that:
a. counsel gave petitioner insufficient time to consider his
b. Petitioner did not understand the terms and did not plead
guilty knowing and voluntarily; and
c. Petitioner was not told that he could not appeal and that
he was waiving any appeal. Had he known that he was waiving
his appeal, he would not have pled guilty.
Petitioner received ineffective assistance of counsel, in
a. negligently failed to interview the key witness;
b. failed to follow the recommendations of his own expert;
c. failed to interview the victim's youngest son,
d. failed to investigate and present exculpatory evidence;
e. failed to investigate and develop ballistics evidence; and
f. failed to develop psychological evidence.
ease of discussion, the Court has organized the claims into
three categories: (1) claims that have not been pled
sufficiently, (2) claims that were adjudicated in state
courts, and (3) claims that are subject to a finding of
petitioner must state facts that point to a real possibility
of constitutional error to be entitled to habeas corpus
relief. Blackledge v. Allison, 431 U.S. 63, 75 n.7
(1977). A claim that lacks any factual support is conclusory,
and it is well settled that conclusory claims fail to state a
claim for relief under § 2254. Lynott v. Story,
929 F.2d 228, 232 (6th Cir. 1991) (observing that bare,
conclusory allegations, unsupported by facts, cannot
establish a constitutional violation). Even though ...