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Webster v. Phillips

United States District Court, M.D. Tennessee, Nashville Division

October 5, 2017

MICHAEL WEBSTER, Petitioner,
v.
SHAWN PHILLIPS, Warden Respondent.

          MEMORANDUM OPINION

          WAVERLY D. CRENSHAW, JR CHIEF UNITED STATES DISTRICT JUDGE.

         This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner Michael Webster is serving a term of 25 years' imprisonment imposed by the Davidson County Criminal Court on November 4, 2010, after a jury convicted him of second-degree murder. (Doc. No. 13-1 at Page ID# 68.) Respondent has filed an answer to the petition (Doc. No. 14) that the petition is without merit.

         The matter is ripe for review and the court has jurisdiction. 28 U.S.C. § 2241(d). Respondent does not dispute that the petitioner's federal habeas petition is timely. (Doc. No. 14 at Page ID# 1007.) Respondent states that the federal habeas petition at issue here appears to be Petitioner's first application for federal habeas relief. (Id.)

         Because a federal court must presume the correctness of a state court's factual findings unless the petitioner rebuts this presumption with ‘clear and convincing evidence, ” 28 U.S.C. § 2254(e)(1), and because the issues presented can be resolved with reference to the state-court record, the court finds that an evidentiary hearing is not necessary. See Schriro v. Landrigan, 550 U.S. 464, 474 (2007) (holding that if the record refutes a petitioner's factual allegations or otherwise precludes habeas relief, the district court is not required to hold an evidentiary hearing (citing Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998))). For the reasons below, the Court finds that Petitioner is not entitled to relief. Accordingly, the petition will be denied and this matter dismissed.

         I. PROCEDURAL BACKGROUND

         The state prosecution arose from the shooting death of Nickalus “Sleepy” Jones. In November, 2009, Petitioner was indicted by the Davidson County grand jury and charged with one count of first-degree murder. (Doc. No. 13-1 at Page ID# 42-44.) Petitioner was tried before a jury beginning September 13, 2010 and concluding on September 15, 2010. (Doc. Nos. 13-2-13-4.) At the conclusion of the trial, the jury found Petitioner guilty of the lesser-included offense of second-degree murder. (Doc. No. 13-4 at Page ID# 537.) Following a sentencing hearing conducted on October 28, 2010 and November 18, 2010, Petitioner was found to be a range-one offender and was sentenced to a term of 25 years' imprisonment. (Doc. Nos. 13-6-13-7.)

         Petitioner appealed his judgment of conviction to the Tennessee Court of Criminal Appeals (“TCCA”), which rejected all appellate arguments, and affirmed Petitioner's conviction and sentence in an unpublished opinion issued on December 5, 2012. (Doc. No. 13-13; see also State v. Michael Webster, No. M2011-00521-CCA-R3-CD; 2012 WL 6032507, at *1 (Tenn. Crim. App. Jan. 18, 2013) [Webster I].) Petitioner filed an application for permission to appeal to the Tennessee Supreme Court, which was denied on April 9, 2013. (Doc. Nos. 13-14, 13-15.)[1]

         On August 9, 2013, Petitioner filed a petition for post-conviction relief in the Davidson County Criminal Court. (Doc. No. 13-16 at Page ID## 820-25.) On October 3, 2013, counsel was appointed to assist the petitioner. (Id. at Page ID# 830.) Counsel amended the petition for post-conviction relief twice. (Id. at Page ID## 833-40, 841-49.) The matter was heard in the trial court on May 1, 2014, and on September 30, 2014, the court issued an order denying relief. (Doc. Nos. 13-17 at Page ID## 144-148; 13-16 at Page ID## 853-63.)

         Petitioner appealed to the TCCA, which denied relief on December 22, 2015. (Doc. No. 13-21; see also Michael Webster v. State, No. M2014-02019-CCA-R3-PC, 2015 WL 9412755, at *1 (Tenn. Crim. App. Dec. 22, 2015) [Webster II].) Petitioner filed an application for permission to the appeal to the Tennessee Supreme Court, which was denied on June 23, 2016. (Doc. No. 13-22-13-23.)

         II. STATEMENT OF FACTS

         The TCCA summarized the facts presented at trial as follows:

On July 30, 2009, officers were called multiple times to a Nashville subsidized housing development at University Court. The call in question was a shooting. When they arrived, officers discovered the victim, Nickalus “Sleepy” Jones, lying on the ground near a Jeep Cherokee. Paramedics were called, but the victim died as a result of the gunshot wound. Officers arrested Appellant on August 2, 2009, and they recovered a weapon and ammunition at the home where Appellant was found.
At trial, multiple witnesses testified that they saw the altercation between Appellant and the victim. The testimony was that Appellant and the victim encountered each other near unit 145A. Appellant asked the victim where his gun was. The victim replied that he did not have a gun and lifted up his shirt to prove it. Witnesses testified that they did not see a gun when the victim lifted up his shirt. The victim begged for his life and told Appellant that he had children. According to witnesses, Appellant shot the victim as the victim was facing him, and when the victim ran away, Appellant chased him and continued to shoot at him.
Officers searched the area near the victim's body. They found a spent bullet in the nearby Jeep Cherokee. They did not find any shell casings or a weapon near the location of the victim's body or on the victim's person. The medical examiner, John Davis, performed an autopsy on the victim's body. He testified that the cause of death was the gunshot wound. He recovered a bullet from the victim's body. Agent Alex Broadhag with the Tennessee Bureau of Investigation (“TBI”) ran a ballistics test on the gun found during Appellant's arrest. Agent Broadhag testified that he was “certain” that the bullet that caused the victim's death which was recovered during the autopsy was fired from the gun found during Appellant's arrest.
Appellant testified on his own behalf at trial. He admitted that he was involved in a verbal altercation with the victim. However, he disagreed with the other witnesses' version of events. He stated that when the victim lifted up his shirt, the victim had a gun. Therefore, he presented a defense of self-defense.
At the conclusion of the trial, the jury found Appellant guilty of the lesser included offense of second degree murder. The trial court sentenced Appellant as a Range I, standard offender to twenty-five years of incarceration with a 100% release eligibility.

Webster I, 2012 WL 6032507, at *1-2.

         The TCCA summarized the evidence presented at the post-conviction evidentiary hearing, in pertinent part, as follows:

[T]he Petitioner testified that trial counsel failed to interview witnesses. The Petitioner testified that he provided trial counsel with the names of two witnesses, “Fun Fun” and “Kiki, ” but, “to [his] knowledge[, ] she never went and checked or asked [any] questions.” He only knew these witnesses by their “street names, ” but he said that he provided trial counsel with addresses where they could be located. The Petitioner testified that he knew that trial counsel did not attempt to find the witnesses “[because] if [counsel] would have went [sic] to the address[, ][she] would have found them.” He agreed that trial counsel told him that she was unable to locate the witnesses, but he was skeptical that she had actually made an effort to find them.
Contrary to his earlier testimony, on cross-examination the Petitioner admitted that he did know about his preliminary hearing prior to the hearing date because someone at the jail told him about it. However, he claimed that he did not meet trial counsel at all until after the hearing and that she waived his appearance without his permission. According to the Petitioner, he was imprisoned for a full month after the preliminary hearing before trial counsel met with him for the first time. The Petitioner testified that trial counsel did not tell him that identity might be an issue in the case or explain that she did not want to risk his being identified by witnesses at the preliminary hearing.
The Petitioner testified that trial counsel provided him with a copy of discovery sometime in November 2009. He and trial counsel “somewhat” discussed the discovery materials, and they also talked about several of the witnesses. The Petitioner estimated that he and trial counsel discussed the facts of his case two to three times for fifteen to twenty minutes each time. He and trial counsel also discussed the content of his statement to police wherein the Petitioner claimed that he was “defending himself” when he shot the victim. The Petitioner disagreed that saying he was “defending himself” was the same as saying that he acted in “self-defense.” He opined that voluntary manslaughter would have been a better defense strategy because he and the victim “had a heated discussion before anything ever occurred, ” and, therefore, he was “in a state of passion” when he shot the victim.
Trial counsel testified that she spoke with the Petitioner prior to his preliminary hearing and that they discussed waiving his appearance, although she did not receive a written waiver from him. According to trial counsel, she met with the Petitioner in jail several times before the preliminary hearing, including on the morning of the preliminary hearing.
Trial counsel stated that, in the approximately one-year period between the “bind over” and trial, she met with the Petitioner over thirty times. During these meetings, trial counsel and the Petitioner discussed the discovery materials and trial strategy. Trial counsel testified that she received input from the Petitioner regarding trial strategy and that, because of his statement to police in which he claimed to be defending himself, the defense was going to be a claim of self-defense. Trial counsel did not remember the Petitioner's telling her that he wanted to pursue a voluntary manslaughter defense.
Trial counsel spoke with witnesses to the shooting about the altercation that had occurred between the Petitioner and the victim prior to the shooting and about an apparent fight between the two that occurred earlier in the day. The altercation appeared to have been verbal, and there was no evidence that any kind of physical fight occurred. Trial counsel said that she spoke with all the witnesses that she was able to find. She testified that, although no weapon was found on the victim, she decided to pursue a claim of self-defense because the Petitioner insisted that he saw the victim with a gun. Pictures of the victim showed that he had a large, silver belt buckle on at the time, allowing for the inference that the Petitioner might have mistaken it for a gun.
Trial counsel recalled the Petitioner's telling her about Fun Fun and Kiki, but she denied that she had an address for either witness. She further stated that, although other witnesses apparently knew who they were, she never learned their real names. Trial counsel did receive information that they lived in the 12th Avenue North area, and she sent an investigator to the neighborhood to look for them, but to no avail. Additionally, trial counsel testified that she personally looked for these two witnesses in the University Court area on several occasions but was ultimately unsuccessful. She testified that she pursued all leads on witnesses provided by the Petitioner.
Trial counsel remembered that after voir dire, one of the jurors sent an email to the jury coordinator stating that he had a conflict and was not comfortable serving on the jury. The e-mail from the excused juror was admitted as an exhibit at the post-conviction hearing. In the letter, the juror expressed his surprise at being picked for the jury panel because, during voir dire, he disclosed his close ties to the community where the shooting occurred. The juror stated that he did not feel comfortable serving on the jury and that he was concerned he may know some of the witnesses in the case. The juror was removed from the jury panel, and trial counsel stated that she did not voir dire him before he was released. Trial counsel agreed that she did not move for a mistrial based on the possibility that the excused juror had influenced other members of the jury panel.
Trial counsel agreed that she did not raise any objections during cross-examination of the Petitioner and explained that was because she believed that the Petitioner “was doing a very good job on direct and during cross-examination.” Trial counsel was asked why she did not object to the following question from the prosecutor: “[C]an you approximate for us how many days did you work in the week before the murder?” Specifically, she was asked why she did not object to the prosecutor's use of the word “murder.” Trial counsel said that “it wouldn't have occurred to [her]” to object to that question.
On cross-examination, trial counsel testified that she met with the Petitioner at least twice prior to the preliminary hearing and explained that she advised the Petitioner against appearing at his preliminary hearing because she thought identity might be an issue at trial, and she did not want witnesses to positively identify him at the hearing. She claimed that, at the time of hearing, she was not aware that the Petitioner had given a statement to the police wherein he admitted to shooting the victim. According to trial counsel, the Petitioner did not object to waiving his appearance at the preliminary hearing.
Trial counsel testified that she met with the Petitioner multiple times after receiving discovery. She estimated that she met with him thirty-plus times in jail, in addition to when she saw him on court dates. At these meetings, trial counsel discussed the discovery materials with the Petitioner, including recorded witness statements. According to trial counsel, she and the Petitioner discussed proceeding on a self-defense claim. Trial counsel agreed that proving self-defense would have been difficult because witness statements indicated that the victim was unarmed and unaggressive. However, trial counsel planned to rely on the fact that the victim was wearing a belt buckle to support a theory that the Petitioner thought he saw a gun when the victim lifted his shirt.
Trial counsel testified that the Petitioner never told her that he did not want to claim self-defense and never told her that he would rather proceed with a voluntary manslaughter defense. Trial counsel's decision to utilize a self-defense claim was based on the fact that the Petitioner had told police he was defending himself. She agreed that, generally, they pursued an “anything but first degree murder defense.” Thus, in her closing statement, she actually did ask the jury to convict him of the lesser included offense of voluntary manslaughter if they decided that he had not acted in self-defense.
With respect to the dismissed juror, trial counsel recalled that, on the night of the first day of trial, one of the jurors wrote an email indicating that he was too conflicted to serve as a juror. Trial counsel could not remember whether the juror came to court on the second day of trial. To the best of trial counsel's recollection, the juror was dismissed prior to opening statements. She surmised that, because of the timing of the dismissal, the juror would have had very little opportunity to speak with other jurors about the case, and there was no evidence that he had tainted the jury. The parties agreed that he would be designated as one of the alternate jurors so that the case could proceed without interruption.
On September 20, 2014, the post-conviction court filed a detailed order denying the petition for post-conviction relief. With respect to the waiver of the Petitioner's appearance at the preliminary hearing, the court accredited trial counsel's testimony that the appearance was waived for tactical reasons. The court also concluded that the Petitioner's waiver of his right to appear was knowing and voluntary. Further, the court noted that the Petitioner had “in no way suggested how his absence from the preliminary hearing prejudiced him. . . .”
Next, the post-conviction court addressed the Petitioner's claim that trial counsel failed to adequately communicate with him. The court noted that, assuming the Petitioner's testimony was true regarding the number of times he met with trial counsel, the total number of meetings would add up to approximately fourteen. The trial court determined that if trial counsel's testimony was accredited, the total number of meetings would be at least thirty-three. The court concluded that, based on either account, the number of meetings “appear[ed] to be reasonable.” With respect to the substance of these meetings and the Petitioner's claims that there was no meaningful discussion regarding discovery or trial strategy, the court again accredited trial counsel's testimony that she discussed the case extensively with the Petitioner. In making this determination, the court noted that the Petitioner had actually testified that he and trial counsel went over the facts of his case several times and that he was provided with discovery early in the progression of his case.
The post-conviction court also concluded that trial counsel's reliance on a theory of self-defense was reasonable given the Petitioner's own statement to police that he was defending himself. There was a “history of animosity” between the Petitioner and the victim, which supported claims of both self-defense and voluntary manslaughter; however, the court found that it was reasonable to mainly focus on self-defense. The post-conviction court also found that the Petitioner failed to establish prejudice with respect to his claims that trial counsel did not adequately communicate with him or pursue a reasonable trial strategy.
The court found that trial counsel was persistent in her pursuit of potential witnesses, although she was ultimately unable to locate Fun Fun and Kiki, whom the Petitioner had specifically asked her to find. The court pointed out that the Petitioner had failed to produce any of the witnesses at issue at the post-conviction hearing, resulting in a failure to prove prejudice. Likewise, the court discredited the Petitioner's claims that trial counsel should have objected to the prosecutor's questions on cross-examination. The court found that “the objections would not have been sustained or were of minor significance.” Finally, the post-conviction court rejected the Petitioner's contention that trial counsel was ineffective for failing to move for a mistrial based on juror misconduct. The court found that the juror was actually voir dired by the trial court before he was dismissed, and the juror assured the trial court that “he did not share with any of the other jurors anything about his purported bias and the inability to serve as a juror on the trial.” Therefore, there was no reason for trial counsel to request a mistrial, and the Petitioner was not prejudiced by her failure to do so.

Webster II, 2015 WL 9412755, at *1-5.

         III. ISSUES ...


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