United States District Court, E.D. Tennessee, Greeneville
Jordan United States District Judge.
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.
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.
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).
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).
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.
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.
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.
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
STANDARD OF REVIEW
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).
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
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
§ 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].
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
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.].
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.
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).
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