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Lynn v. Donahue

United States District Court, W.D. Tennessee, Eastern Division

November 30, 2017

JOHNNY LYNN, Petitioner,
v.
MICHAEL DONAHUE, Respondent.

          ORDER DENYING § 2254 PETITION, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING THAT AN APPEAL WOULD NOT BE TAKIN IN GOOD FAITH, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          S. THOMAS ANDERSON, CHIEF UNITED STATES DISTRICT JUDGE

         Johnny Lynn, a Tennessee state prisoner, has filed a pro se petition under 28 U.S.C. § 2254 seeking habeas corpus relief (“Petition”). (ECF No. 1.) For the reasons that follow, the Petition is DENIED.

         BACKGROUND

         The following background summary is drawn from the state court record (ECF Nos. 17, 18, 19) and the state appellate court's recitation of the evidence presented at Lynn's trial. See State v. Lynn, No. M2008-00532-CCA-R3-CD, 2009 WL 1812419, at *1 (Tenn. Crim. App. June 25, 2009), perm. appeal denied (June 19, 2012).

         I. Trial and Direct Appeal

         In 2007, Lynn was convicted of two counts of rape of a child and two counts of aggravated sexual battery involving his wife's granddaughter. Id. At trial, the victim testified that, in 2001 or 2002, when she was ten- or eleven-years-old, Lynn touched her “between her legs and on her chest, rubbing her on the outside of her clothing.” Id. She further testified that on a separate occasion the Petitioner ejaculated on her stomach. Id. The victim also described a third incident, during which Lynn “‘stuck' his penis in her vagina, ‘put white stuff in [her], and then licked it out' with his tongue.” Id. The victim identified “two photographs . . . depicting the Defendant inserting his penis into the victim's vagina.” Id. “When asked why she did not tell anyone at th[e] time, she responded that the Defendant told her he would kill her.” Id.

         The parties stipulated to testimony of a Polaroid employee who analyzed the frame codes on the photographs. The employee reported that the film of one of the photographs was manufactured on or about May 31, 2000, and two other photographs came from film manufactured on or about April 24, 2002. Id. at *2.

         A pediatric nurse practitioner, Sue Ross, testified that she had conducted a physical examination of the victim. Id. She reported that the examination was normal but that “the vast majority of all exams are normal.” Id. Ross opined that “the normal results of the victim's examination neither confirmed nor discounted the possibility of sexual contact.” Id. During cross-examination, Ross “confirmed that the victim did not mention penetration when interviewed.” Id. On redirect, she affirmed the victim's statements to her that Lynn touched her “‘privates' with his hands, ” her genital area with his mouth, her thigh and abdomen with his penis, and that he ejaculated on her stomach. Id. She affirmed on recross that “in the victim's medical history, it was reported that the victim unequivocally stated that the Defendant did not put his penis inside her.” Id.

         Petitioner testified that, at the time of the alleged incidents, he suffered from a rotator cuff injury which required surgery and physical therapy. He denied having any sexual contact with the victim and stated that he believed his wife “had coached [the victim] into making the allegations.” Id. The medical director at the hospital at which Lynn had his surgery confirmed that he had surgery and physical therapy during the relevant timeframe, but that he “still had use of his arm during his therapy.” Id.

         The jury found Petitioner guilty as charged. At sentencing, the trial court imposed a ten-year term of imprisonment on each of the aggravated sexual battery convictions, to run concurrently, and a twenty-two-year term of imprisonment on each of the convictions for rape of a child. The twenty-two-year sentences were to run consecutively to each other and to the ten-year sentence, for an effective fifty-four-year sentence. Id. at *3-4.

         Petitioner advanced four arguments on direct appeal: the trial court improperly charged the jury that the elements of rape of a child could be satisfied by showing a mens rea of recklessness (ECF No. 18-10 at 22); the evidence was insufficient to sustain the convictions (id. at 27); the trial court improperly sentenced the defendant (id. at 30); and the trial court improperly allowed, as expert opinion, the testimony of the nurse practitioner as to what most children understand about sex and their bodies (id. at 33-34). The TCCA affirmed the convictions and sentences. Lynn, 2009 WL 1812419, at *1.

         On September 1, 2009, the Tennessee Supreme Court dismissed Petitioner's initial application for permission to appeal as untimely filed. (ECF No. 18-17 at 5.) Petitioner was granted the right to file a delayed appeal (ECF No. 18-15 at 47), and the Tennessee Supreme Court thereafter denied discretionary review. Lynn, 2009 WL 1812419, at *1.

         II. Post-conviction Proceedings

         Petitioner filed a pro se petition for state post-conviction relief in June 2010. (ECF No. 18-15 at 4.) He alleged that the trial court erred in instructing the jury that the mens rea for child rape could include recklessness and in admitting the photographs into evidence. (Id. at 6.) He also claimed that the prosecution failed to give him notice, as required by state statute, of its intention to seek an enhanced sentence. (Id.) Lynn further asserted that his trial attorneys rendered ineffective assistance by failing to challenge the jury instructions' references to reckless conduct, failing to challenge admission of the photographs, failing to challenge the State's failure to provide notice of its intention to seek an enhanced sentence, failing to interview witnesses, failing to meet and confer with him when necessary, and failing to investigate and present mitigating evidence at sentencing. (Id. at 13-17.)

         Appointed counsel filed an amended petition, which raised the following ineffective assistance claims:

1. Trial counsel should have called as witnesses Paul and Debbie Cox, who would have testified about Lynn's wife's statement that she would do anything to harm Petitioner:
2. Trial counsel should not have stipulated to the Polaroid employee's report showing the time frame of the incriminating photographs;
3. Trial counsel should have had Petitioner execute a waiver of ex post facto protections which would have enabled him to be sentenced under the June 7, 2005 version of the state sentencing act;
4. Counsel on direct appeal should have timely applied for permission to appeal to the Tennessee Supreme Court, in light of the fact that there was a split of authority on the issue of whether it is error for a trial court to charge a “reckless” mens rea to support child rape convictions.

(ECF No. 18-15 at 23-24.)

         The post-conviction court held an evidentiary hearing and denied relief. (ECF No. 18-16; ECF No. 18-15 at 64). The TCCA affirmed. See Lynn v. State, No. M2012-01877-CCA-R3PC, 2013 WL 5300676, at *1 (Tenn. Crim. App. Sept. 18, 2013).

         Petitioner thereafter filed a motion to correct illegal sentence pursuant to Tenn. R. Crim. P. 36.1, arguing that his convictions violated double jeopardy protections. State v. Lynn, No. M2015-02413-CCA-R3-CD, 2017 WL 838481, at *1 (Tenn. Crim. App. March 3, 2017). The state court denied the motion and the TCCA affirmed. Id.

         III. Federal Habeas Petition

         On September 9, 2014, Lynn filed his pro se § 2254 Petition, in which he asserts the following claims:

         Claim 1: Petitioner's trial attorneys, Trudy Bloodworth and Mark Scruggs, rendered ineffective assistance for the following reasons:

A. Bloodworth had no experience in this type of case;
B. Bloodworth refused to interview any witnesses prior to trial or call any witnesses at trial;
C. Bloodworth failed to take discovery and review discovery with Petitioner;
D. Bloodworth had been removed as counsel by the judge in April 2008, but on the day of trial appeared and conducted trial, resulting in a conflict of interest;
E. Bloodworth and Scruggs failed to object to, challenge, or preserve error in the testimony of Sue Ross, who testified as to out-of-court conversations with the victim in violation of the Confrontation Clause;
F. Bloodworth failed to inform or advise Petitioner about an “ex-post-facto” waiver that would have permitted the trial court to sentence Petitioner under the 2005 amendment to the Tennessee sentencing act and allowed him to receive a lesser sentence;
G. Bloodworth and Scruggs failed to object, challenge, or preserve for review the State's “trial by ambush” introduction of photographs that Petitioner was not shown until introduced by the State at trial;
H. Bloodworth and Scruggs failed to object to, challenge, or preserve for review the several inconsistent statements of the victim;
I. Bloodworth and Scruggs failed to obtain the services of an expert witness to rebut Sue Ross's testimony.

(ECF No. 1 at 4-6.)

Claim 2: Counsel on direct appeal rendered ineffective assistance by failing to raise more than the evidence-sufficiency issue. (Id. at 6.)
Claim 3: The trial court erred in admitting “testimonial” hearsay of out-of-court statements by Sue Ross, in violation of the Confrontation Clause.

(Id. at 7.)

         Claim 4: Post-conviction counsel rendered ...


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