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Trehern v. Warden Westbrook

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

September 29, 2017



          Leon Jordan United States District Judge.

         Presently before the Court is a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner Richard Trehern [Doc. 1] challenging his 2008 Tennessee state court conviction for two counts of aggravated child abuse. Respondent has filed an answer [Doc. 8], as well as a copy of the state court record [Doc. 13]. For the following reasons, Petitioner's § 2254 petition will be DENIED and this action will be DISMISSED WITH PREJUDICE.


         Petitioner was indicted by a grand jury in Hawkins County, Tennessee, on three counts of aggravated child abuse of his infant daughter in violation of Tennessee Code Annotated § 39-15-402(a)(1) and (b) [Doc. 13 Attachment 1 pp. 1; 16-17]. Following a trial, a jury returned a verdict of guilty on Counts One and Two and not guilty on Count Three, [Id. p. 28], and Petitioner was sentenced to two concurrent terms of 20 years' incarceration [Id. pp. 29-30].

         Petitioner appealed his conviction and sentence to the Tennessee Court of Criminal Appeals (“TCCA”) raising three issues: (1) the evidence was insufficient to support his convictions; (2) the trial court erred in denying his motion to compel the State to produce medical records; and (3) his sentences were excessive [Doc. 13 Attachment 6]. The TCCA affirmed Petitioner's conviction and sentence and Petitioner's application for permission to appeal was denied by the Tennessee Supreme Court. State v. Trehern, No. E2009-00066-CCA-R3-CD, 2010 WL 2695635 (Tenn. Crim. App. July 7, 2010) perm. app. denied (Tenn. Nov. 12, 2010).

         Petitioner timely filed a petition for post-conviction relief in the Hawkins County Criminal Court asserting that his trial counsel was ineffective: (1) by failing to adequately communicate and meet with him to prepare for the case; (2) by failing to attack the credibility of his ex-wife on cross-examination; (3) by failing to advise him that the crime for which he was charged had no release eligibility date; (4) by failing to adequately advise him of the consequences of his hearing under Momon v. State, 18 S.W.3d 152 (Tenn. 1999); and (5) by failing to obtain an expert witness to rebut the State's theory of shaken baby syndrome [Doc. 13 Attachment 10 pp. 1-28]. Following an evidentiary hearing, the post-conviction court denied relief [Doc. 13 Attachment 10 pp. 40-48]. The judgment of the post-conviction court was affirmed by the TCCA and Petitioner's application for permission to appeal was denied by the Tennessee Supreme Court. Trehern v. State, No. E2012-01475-CCA-R3-PC, 2013 WL 5436953 (Tenn. Crim. App. Sept. 27, 2013) perm. app. denied (Tenn. Feb. 12, 2014).


         Petitioner was indicted on three charges of aggravated child abuse for inflicting serious bodily injury upon his infant daughter in April of 2007. As set forth by the TCCA:

[Petitioner] married Michelle Trehern in Alabama. The couple divorced in November 2006, and Trehern moved back to Tennessee. She gave birth to the victim on December 20, 2006. The couple attempted to reconcile. [Petitioner] moved to Tennessee and began living with Trehern on March 5, 2007.

Trehern, 2010 WL 2695635, at *1.

         The decision of the TCCA affirming Petitioner's conviction and sentence on direct appeal sets forth a lengthy recitation of the evidence from his jury trial in October of 2008. Trehern, 2010 WL 2695635, at *1-10. Included are summaries of the testimony of seven doctors who either treated or examined the victim or reviewed her medical records; of petitioner's ex-wife; and of a criminal investigator from the District Attorney's office, all of whom testified for the State. The opinion also summarizes the testimony of a child protective services investigator and of the victim's maternal grandmother, both of whom testified for the defense. Id.

         The opinion of the TCCA affirming the decision of the post-conviction court contains a recitation of the facts from the evidentiary hearing held on Petitioner's post-conviction petition and summarizes the hearing testimony of Petitioner, of an investigator with the public defender's office, and of Petitioner's trial counsel. Trehern, 2013 WL 5436953, at *9-13.

         To the extent that any facts and evidence from either the trial or the post-conviction evidentiary hearing are relevant to the claims raised by Petitioner in his § 2254 petition, the TCCA's summary of those facts and evidence will be set forth in more detail below in the analysis of those specific claims.


         A state prisoner is entitled to habeas corpus relief “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, which amended § 2254, sets forth “an independent, high standard to be met before a federal court may issue a writ of habeas corpus to set aside state-court rulings.” Uttecht v. Brown, 551 U.S. 1, 10 (2007). By this standard, when a state court adjudicates a claim on the merits, habeas relief is available only if the adjudication of that claim “(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).

         A state court 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 has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court's ruling is an “unreasonable application of” clearly established Federal law if the state court identifies the correct governing legal principle from Supreme Court precedent but unreasonably applies it to the facts of the particular state prisoner's case. Id. at 407. The habeas court is to determine only whether the state court's decision is objectively reasonable, not whether, in the habeas court's view, it is incorrect or wrong. Id. at 411.

         Under the AEDPA, a habeas petitioner must “‘show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). This standard is “difficult to meet, ” “highly deferential, ” and “demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Harrington, 562 U.S. at 102; Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).

         IV. ANALYSIS

         Petitioner's § 2254 petition raises five grounds for relief: (1) he was denied his right to effective assistance of counsel due to trial counsel's failure (a) to retain an expert witness on shaken baby syndrome; (b) to effectively cross-examine Petitioner's ex-wife at trial; and (c) to properly prepare for trial; (2) the evidence presented at trial was insufficient to support his convictions on two counts of aggravated child abuse; (3) the trial court erred in denying his motion to compel discovery; (4) the trial court improperly applied statutory sentencing enhancement factors; and (5) the trial court improperly denied his post-conviction petition [Doc. 1].


         Petitioner's first habeas claim is that he was denied his Sixth Amendment right to the effective assistance of counsel at trial [Doc. 1 p. 5]. Specifically, Petitioner alleges that his trial counsel: failed to hire an expert on shaken baby syndrome to determine the cause of the victim's injuries; failed to effectively cross-examine Petitioner's ex-wife; and failed to adequately prepare for trial [Id.].

         Petitioner challenged the effectiveness of trial counsel on each of the foregoing grounds in his state post-conviction petition. Following an evidentiary hearing, the post-conviction court rejected the claim, finding that Petitioner failed to prove by clear and convincing evidence any of the alleged grounds of ineffectiveness [Doc. 13 Attachment 10 pp. 45-46]. The post-conviction court made the following findings as summarized by the TCCA:

The Court finds that Petitioner is not credible concerning his allegations that his attorney, [ ], did not investigate the case, only visited him one or two times and would not let him testify at trial. The proof in this matter shows that [trial counsel] is an experienced public defender who investigated the case with the help of a very experienced investigator, Lawrence Smith. Mr. Smith attempted to locate witnesses including the babysitter that Petitioner could not name. Mr. Smith and [trial counsel] both agreed that the child's injuries were consistent with shaken baby syndrome and that there was no need to try to locate an expert to attack the child's injuries. [Trial counsel] and Mr. Smith agreed that the real issue in the case was: who caused the injuries? They wanted to attack the credibility of Petitioner's ex-wife, Michelle Trehern but Petitioner would not let them. [Trial counsel] and Mr. Smith visited Petitioner on many occasions and [trial counsel] testified he went over discovery with Petitioner. [Trial counsel] had a very difficult case because Petitioner said that he lied in the first statement to law enforcement and that he dropped the baby when he sneezed and blacked out. Petitioner's second statement was less credible when doctors testified the child had different ages of injuries and the injuries could not be caused by dropping the baby.

Trehern, 2013 WL 5436953, at *14.

         The TCCA agreed with the post-conviction court and, after rejecting each specific ground of alleged deficiency, concluded that “Petitioner has failed to show by clear and convincing evidence that he received ineffective assistance of counsel at trial or that he was prejudiced by any alleged defective representation by counsel.” Id., at *17. Respondent argues that the decision of the TCCA is entitled to deference under § 2254(d).


         The Sixth Amendment provides, in pertinent part, that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const. amend. VI. Under the Sixth Amendment, a defendant has a constitutional right not just to counsel, but to “reasonably effective assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the Strickland standard for proving ineffective assistance of counsel, a defendant must ...

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