Fishback v. Parris

          Wesley D. Crenshaw, Jr. Chief Judge.

          REPORT AND RECOMMENDATIONS

          Michael R. Merz, Magistrate Judge.

         This is a habeas corpus case under 28 U.S.C. § 2254 in which Petitioner, represented by counsel, seeks relief from his convictions in the Circuit Court of Rutherford County, Tennessee, on charges of especially aggravated kidnapping, aggravated assault, and possession of a weapon during the commission of a felony offense. Although the case was filed in 2012, it did not become ripe for decision until the filing of Petitioner's Response to Surreply on October 3, 2017 (ECF No. 80). It was referred to the undersigned, sitting by assignment, on June 22, 2017.

         Procedural History

         The offenses of which Petitioner was convicted occurred at the Hot Spot Tanning Salon in Smyrna, Tennessee, on April 28, 2005.^[1] After a jury convicted Fishback of the above offenses, the trial judge determined that he was a career offender and sentenced him to sixty years on the kidnapping charge, fifteen years consecutive on the assault charge, and two years concurrent on the weapons charge. Fishback moved for a new trial on grounds that the kidnapping and assault charges should have been merged. After losing that motion, Fishback appealed to the Tennessee Court of Criminal Appeals which affirmed the convictions and sentence. State v. Fishback, 2008 WL 2521555 (Tenn. Crim. App. June 24, 2008). The Tennessee Supreme Court denied review.

         Fishback then filed a petition for post-conviction relief which included a request for delayed appeal. A hearing on the petition commenced April 24, 2009, but was interrupted to allow an application for delayed appeal to the Tennessee Supreme Court which that court denied. The hearing then resumed March 16, 2010, and concluded with a trial court finding that Fishback had not proven ineffective assistance of counsel. Fishback again appealed and the Tennessee Court of Criminal Appeals again affirmed. State v. Fishback, 2011 WL 2565580 (Tenn. Crim. App. Jun. 29, 2011). The Tennessee Supreme Court again denied review and Fishback filed his Petition pro se in this Court January 13, 2012 (ECF No. 1). Appointed counsel then filed an Amended Petition (ECF No. 20) and later, on Judge Crenshaw's Order (ECF No. 56), a Superseding Petition (ECF No. 60). The operative pleadings are now the Superseding Petition, the Answer to Superseding Petition (ECF No. 70), and Petitioner's Response to State's Answer (ECF No. 76).

         The Superseding Petition pleads the following Claims for Relief:

Claim 1: Ineffective Assistance of Trial Counsel in failing

(1) “to investigate whether, and to what extent, Mr. Fishback was under the influence of drugs at the time of the incident” (ECF No. 60, ¶ 33);

(2) “to request a mental evaluation of Mr. Fishback in advance of trial to assess his competency” Id., ¶ 34;

(3) “to object to the process by which Mr. Fishback, an African American defendant, was tried by an all-white jury for offenses against a white victim” Id., ¶ 35;

(4) “to object to the jury instruction for the offense of especially aggravated kidnapping and, as a result, the instruction failed to require a determination of whether the confinement was significant enough, standing alone, to support the conviction and not merely incidental to the accompanying felony” Id., ¶ 36;

(5) “to object to the lack of proper notice of Mr. Fishback's career criminal status as a basis for enhancing his sentence” Id. , ¶ 37;

(6) “to provide adequate advice and counsel to Mr. Fishback in the plea bargaining process.” Id. , ¶ 38.

Claim 2: Ineffective Assistance of Appellate Counsel in failing to raise the following claims:

(a) a claim that the evidence was insufficient to support Mr. Fishback's conviction for especially aggravated kidnapping;

(b) a claim that the trial court erred in failing to dismiss the especially aggravated kidnapping charge on defense counsel's motion for judgment of acquittal;

(c) a claim that the trial court erred in failing to instruct the jury that they could only convict Mr. Fishback of especially aggravated kidnapping if they determined that the confinement of the victim was significant enough, standing alone, to support a conviction and not merely incidental to the accompanying felony; and

(d) a claim that the trial court erred by not merging the aggravated assault conviction into the especially aggravated kidnapping conviction at sentencing. Id. , ¶ 42.

Claim 3: Violation of Due Process and Double Jeopardy in convictions for both kidnapping and assault. Id. , ¶¶ 48-49.

(Superseding Petition, ECF No. 60, PageID 1846-50.) For consistency, these claims are referred to hereinafter as Claims 1(1)-(6), Claims 2(a)-(d), and Claim 3.

         Analysis

         Claims of Ineffective Assistance of Trial Counsel Not Raised in Post-Conviction (Claims 1(1)-(5))

         Petitioner's first five sub-claims of ineffective assistance of trial counsel are that trial counsel failed:

(1) “to investigate whether, and to what extent, Mr. Fishback was under the influence of drugs at the time of the incident” (ECF No. 60, ¶ 33);

(2) “to request a mental evaluation of Mr. Fishback in advance of trial to assess his competency” Id., ¶ 34;

(3) “to object to the process by which Mr. Fishback, an African American defendant, was tried by an all-white jury for offenses against a white victim” Id., ¶ 35;

(4) “to object to the jury instruction for the offense of especially aggravated kidnapping and, as a result, the instruction failed to require a determination of whether the confinement was significant enough, standing alone, to support the conviction and not merely incidental to the accompanying felony” Id., ¶ 36;

(5) “to object to the lack of proper notice of Mr. Fishback's career criminal status as a basis for enhancing his sentence” Id. , ¶ 37;

(Superseding Petition, ECF No. 60, PageID 1846-50.)

         These claims have not been considered on the merits by any Tennessee court because they have never been presented to any of those courts. Thus under ordinary rules of procedural default, they would be barred from consideration in habeas corpus.

         The procedural default doctrine in habeas corpus is described by the Supreme Court as follows:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause of the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that ...