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Wells v. Perry

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

September 27, 2017

GRADY PERRY, Warden, Respondent.



         This is 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 [Id.].

         Respondent 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 precedent.

         Petitioner 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 DENIED.


         On 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].[1] 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.


         The 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 name.
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[2] 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 right.”
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 sentence.

Wells, 2016 WL 656616, at *1-2 (footnote omitted).


         Petitioner lists two primary grounds for relief, with each ground containing several claims [Doc. 6 at 5, 7, and 16].

         1. Petitioner was denied effective assistance of counsel and due process of law, in that:

a. counsel gave petitioner insufficient time to consider his guilty plea;
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.

         2. Petitioner received ineffective assistance of counsel, in that counsel:

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.C.;[3]
d. failed to investigate and present exculpatory evidence;
e. failed to investigate and develop ballistics evidence; and
f. failed to develop psychological evidence.

         For 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 procedural default.

         A. Insufficiently-Pled Claims

         A 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 ...

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