United States District Court, W.D. Tennessee, Eastern Division
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
THOMAS ANDERSON, CHIEF UNITED STATES DISTRICT JUDGE
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.
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,
Trial and Direct Appeal
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.
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.
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.
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
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.
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.
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.
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.)
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
2. Trial counsel should not have stipulated to the Polaroid
employee's report showing the time frame of the
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
(ECF No. 18-15 at 23-24.)
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).
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.
Federal Habeas Petition
September 9, 2014, Lynn filed his pro se § 2254
Petition, in which he asserts the following claims:
1: Petitioner's trial attorneys, Trudy Bloodworth and
Mark Scruggs, rendered ineffective assistance for the
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
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
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.)
4: Post-conviction counsel rendered ...