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Cummins v. Phillips

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

December 22, 2017

CHRISTOPHER A. CUMMINS, Petitioner,
v.
SHAUN 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 Christopher A. Cummins is serving a life sentence imposed by the Wayne County Criminal Court on May 26, 2011, after a jury convicted him of first-degree murder. (Doc. No. 1 at Page ID# 1.) Respondent has filed an answer to the petition (Doc. No. 15) stating that the grounds should be denied because they are without merit.

         The matter is ripe for review and the court has jurisdiction. 28 U.S.C. § 2241(d). Respondent does not dispute that Petitioner's federal habeas petition is timely. (Doc. No. 15 at Page ID## 2261-62.) 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))). Upon review and applying the AEDPA standards, the Court finds that Petitioner is not entitled to relief on the grounds asserted. Accordingly, the petition will be denied and this matter dismissed.

         I. PROCEDURAL BACKGROUND

         The state prosecution arose from the murder of Buddy Allen Griggs, the Petitioner's wife, Krystal Cummins's, [1] ex-boyfriend and the father of her two children. On June 18, 2010, Petitioner was indicted by the Wayne County Grand Jury and charged with one count of first-degree murder. (Doc. No. 14-1 at Page ID## 80-82.) Petitioner was tried before a jury beginning on May 23, 2011 and ending on May 26, 2011, at which time the jury returned a verdict finding Petitioner guilty as charged. (Id. at Page ID## 130-31); see also Doc. No. 14-2-14-7.) Petitioner was sentenced to life imprisonment. (Doc No. 14-1 at Page ID# 132.)

         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 October 22, 2012. (Doc. No. 14-12; see also State v. Chris Cummins, No. M2011-02264-CCA-R3-CD; 2012 WL 5193393, at *1 (Tenn. Crim. App. Oct. 22, 2012) [Cummins I].) Petitioner filed an application for permission to appeal to the Tennessee Supreme Court, which was denied on March 5, 2013. (Doc. No. 14-14; see also Washington I, 2012 WL 6115589 at *1.)[2]

         On September 25, 2013, Petitioner timely filed a petition for post-conviction relief in the Wayne County Criminal Court. (Doc. No. 14-15 at Page ID## 1139-1189.) On September 9, 2013, the trial court appointed counsel. (Id. at Page ID## 1192-93.) Counsel did not file an amended petition for post-conviction relief, relying instead on Petitioner's pro se petition. (Doc. No. 14-16 at Page ID# 1212.) The matter was heard in the trial court on May 15, 2014, and on May 22, 2014, the court issued an order denying relief. (Doc. No. 14-15 at Page ID## 1200-04.)

         Petitioner appealed to the TCCA, which denied relief on September 22, 2016. (Doc. No. 14-25; see also Christopher Allen Cummins v. State, No. M2014-01197-CCA-R3-PC, 2015 WL 4126737, at *1 (Tenn. Crim. App. July 9, 2015) [Cummins II].) Petitioner filed an application for permission to the appeal to the Tennessee Supreme Court, which was denied on November 24, 2015. (Id.)

         II. STATEMENT OF FACTS

         The TCCA summarized the facts presented at trial as follows:

The victim, Buddy Griggs, was the ex-boyfriend of the defendant's wife, Krystal Cummins. The victim and Ms. Cummins had two young children together. The victim disappeared from his mother's home on April 17, 2010, and his remains were found approximately one month later, after the historic flood of May 2010, in a wooded area. Although both the defendant and Ms. Cummins initially denied any involvement with the victim's death, Ms. Cummins, after giving numerous contradictory statements to the police, implicated the defendant and led police to the victim's remains.
Ms. Cummins testified at trial that the defendant was jealous of her relationship with the victim. According to Ms. Cummins, she had decided to leave the defendant because he manufactured methamphetamine. Ms. Cummins testified she brought the victim to the house where she and the defendant lived because she needed to retrieve her diaper bag prior to leaving the defendant. She unexpectedly found the defendant at home. Ms. Cummins testified that there was no immediate hostility between the victim and the defendant and that the three adults spent time playing with the children. According to Ms. Cummins, the victim had put his two-year-old daughter on the hood of a van and was engaged in making sure she did not fall off when the defendant unexpectedly struck him from behind on the right side of the head with a sleeve cut from a thermal shirt, filled with rocks, and secured at either end. Ms. Cummins testified that the defendant then choked the victim with a wire cut from an exercise machine and fitted with homemade handles which she had noticed in his pocket earlier. The defendant wrapped the victim in plastic and placed him in the trunk of the car. The defendant and Ms. Cummins then drove the car with the children inside to the victim's mother's house and left the children there. Ms. Cummins also testified that they stopped by a gas station. After driving various places in an attempt to hide the body and making a few more stops, the defendant rolled the victim down a ridge. The defendant then burned various items which might have had physical evidence on them.
The defendant gave a statement in which he denied any knowledge of the victim's death. However, after he was informed that Ms. Cummins, in one of her statements, had told the police that he and the victim had been fighting and he killed the victim, the defendant gave a second statement which blamed Ms. Cummins for the victim's death. In this statement, he asserted that Ms. Cummins had told him the victim attempted to rape her and she hit him with a rock and choked him with some wire, then put him in the trunk of the car. The defendant stated that Ms. Cummins removed the body from the trunk at their home and wanted to burn the body, but he would not let her. He stated that she put the victim's body back in the trunk and left briefly and that he thought she had removed the body from the trunk. They then took the children to the victim's mother's house, went by the gas station, and drove various places. He stated that he did not realize the victim was still in the car until Ms. Cummins expressed a desire to go down a road to dump the body. When they got home, they burned some wood, but he would not let her burn the body at their home. He stated that he did not know when the body was removed from the trunk and that Ms. Cummins had burned several items.
On the Friday afternoon prior to trial, the prosecutor was told that an inmate had some information regarding the defendant's case. The prosecutor interviewed the inmate, then communicated with others in the District Attorney General's office. The prosecutor was not able to “fully interview” the witness until the morning of the first day of trial, and the decision was made then to use the inmate's testimony at trial. Although the inmate testified at trial that he had told the administrator of the jail that he knew something about the defendant's case in January, approximately four months prior to the trial in late May, the prosecutor stated to the trial court that, while he was aware that the inmate had information regarding a different case, he was not aware that the inmate had any information regarding the defendant's case until the Friday before trial.
The defendant moved for a continuance. At this time, the prosecutor revealed the substance of the witness's expected testimony. The trial court denied the continuance but allowed defense counsel to interview the inmate; the inmate refused to speak with defense counsel. The prosecution provided defense counsel with the inmate's criminal record for the purpose of impeachment. The inmate testified at trial that the defendant had told him and Steven Beersdorf-who was also incarcerated and who was trying to silence a prisoner who planned to testify against him-that the defendant had killed before and was not scared to do it again. The inmate testified that the defendant then privately told him that he had killed the victim with a sock full of rocks and strangled him with a wire, and that he did it so that the victim would not take the kids away because the kids “would get checks” until they turned eighteen. The defendant later, according to the inmate, showed him the photographs of the victim's remains and pointed out a fracture that he said was caused by hitting the victim with the rocks. On cross-examination, the inmate testified that at one point the defendant had animosity towards him because the inmate had called a guard to assist another prisoner who had a seizure while the defendant and another man were “smacking” him for being a child molester. According to the inmate, the defendant showed him the pictures of the victim's remains in order to frighten him. Jeremy Holt testified on behalf of the defendant that he had been incarcerated with the inmate witness and that the inmate told him that someone wanted the inmate to testify against the defendant. Mr. Holt testified that the inmate was trying to get information about the case against the defendant. The trial court allowed defense counsel to interview Mr. Beersdorf, who was allegedly present when the defendant confessed to having killed someone. Although the record shows that the defendant called Mr. Beersdorf and that Mr. Beersdorf testified, the record is missing the volume in which Mr. Beersdorf's testimony is recorded.
Numerous witnesses testified for the State and the defendant. A videotape from Ms. Cummins's stop at the gas station showed the defendant using the windshield cleaner to clean the bumper of the car, and medical testimony established that the victim's skeletal remains had sustained some trauma to the right side of the head which likely was not the result of scavenger activity. The victim's blood was found in the trunk of the car the defendant and Ms. Cummins had used that day. The defendant had attended church the following day and broke down crying at church. The State put on proof that the defendant had cut the victim's picture out of a photo album, and Ms. Cummins's mother testified that the defendant wouldn't let her speak with Ms. Cummins unless she was on speaker phone and that she had seen Ms. Cummins with bruises. The defense put on proof that Ms. Cummins had, in a conversation with an inmate who was housed with her in prison, confessed to killing someone and that she told the victim's aunt by telephone that she had killed the victim. The defense proof also included evidence that Ms. Cummins had choked a woman with whom she was fighting and that she had thrown a boiling teapot at the victim's head. The jury convicted the defendant of first degree murder.

Cummins I, 2012 WL 5193393, at *1-3.

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

The petitioner testified at the hearing that he and his appointed counsel did not learn about Mr. Smith until the morning of the trial, despite the fact that the prosecutor had learned of his existence the previous Friday. The petitioner believed that, had the prosecutor informed them of the witness when he first learned of him, trial counsel would have had time to investigate Mr. Smith's background and proposed testimony. For instance, had trial counsel known earlier of Mr. Smith's claim that the petitioner had shown him photographs of the victim's body, counsel could have presented evidence to show that the petitioner was not provided any photographs of the victim in discovery and had no photographs in his possession.
The petitioner complained that trial counsel not only failed to object to the prosecutor's statement in opening that the petitioner was “cooking meth, ” but also himself made a similar prejudicial comment in his closing argument. He further complained about counsel's having raised only a single issue on direct appeal and not having ensured that the entire record of the trial was included in the record on appeal. The petitioner said he believed that all four of the issues counsel raised in the motion for new trial should have been raised in the direct appeal.
On cross-examination, the petitioner acknowledged that trial counsel was provided with Mr. Smith's criminal history and was given the opportunity to interview Mr. Smith. He further acknowledged that the jury heard Mr. Beersdorf's testimony, which contradicted Mr. Smith's testimony about the petitioner's alleged confession to the crime. On redirect examination, he recalled that trial counsel met with him only three times prior to trial. According to his testimony, trial counsel promised to meet with him on the Saturday and Sunday immediately prior to trial to review the case and to prepare him to testify, but trial counsel “never showed up.” On recross examination, the petitioner testified that he wanted to testify at trial but, because trial counsel never prepared his testimony and told him that counsel's wife thought he should not testify, he agreed not to take the stand. The petitioner acknowledged, however, that he did not allege in his petition that trial counsel had forced him not to testify. He further acknowledged that he had thirty-four felony forgery convictions, which the State could have used to impeach his testimony.
Trial counsel, called as a witness by the State, testified that the petitioner's use and production of methamphetamine was an issue that was “so intertwined” in the facts of the case that he did not “see any way that that could be taken out.” As for his having raised only the single issue on appeal, trial counsel explained that he thought the trial judge had ruled in the defense's favor on a lot of the issues throughout trial, thus “limiting what [they] could do on appeal just because those issues weren't there.” Counsel said he did not believe, given the evidence, that he could have raised a sufficiency of the evidence issue with a “straight face.” Counsel stated that his investigator found witnesses who were able to testify that the petitioner's wife had confessed to the murder.
Trial counsel testified that he met with the petitioner “quite a bit, especially . . . when [they] were getting ready for . . . trial.” He discussed with the petitioner the possibility of his testifying, including the fact that he had thirty-four felony forgery convictions and had given two different stories to the police about the crime. Trial counsel said the petitioner was “[a]ll for not testifying” at the conclusion of their discussions. At one point during trial, the petitioner mentioned a desire to testify, but he changed his mind after another discussion with counsel in which counsel again advised him not to testify. Counsel recalled that he probably discussed the issue with his wife, who had witnessed a good portion of the trial, and also probably conveyed to the petitioner his wife's opinion that the petitioner should not testify. He said, however, that whether or not to testify was ultimately the petitioner's decision.
Trial counsel testified that he objected to the last minute jailhouse witness and moved for a continuance, which was denied. He said that Mr. Smith was a devastating witness and that the more he cross-examined him, “the worse it got.” He was given Mr. Smith's criminal record and afforded an opportunity to talk to him before trial, but Mr. Smith declined to speak with him.
Trial counsel testified that he issued a subpoena for Jamie Staggs, who had, supposedly, seen the petitioner turn “white as a sheet” when Mr. Staggs asked him about the victim. Counsel said he had no knowledge of Mr. Staggs having confessed to the murder, and if he had had that information, he could have put him on the stand and questioned him about it. Trial counsel testified that he provided discovery to the petitioner, which would have included copies of the photographs in the case.
On cross-examination, trial counsel testified that the prosecutor told him during a telephone conversation on the Sunday before trial that he might have a surprise for him at trial. He said he told the prosecutor that he hated surprises and asked him to let him know what it was, but the prosecutor chose not to reveal the nature of the surprise, or the name of the witness, until the morning of trial. He agreed that had he known about the witness a month before trial, he could have thoroughly investigated his background and tried to talk to him about his testimony. Trial counsel said he knew he prepared for the trial over the weekend, but he could not recall if he visited the petitioner in the jail on that Saturday or Sunday. Finally, trial counsel testified that, in his opinion, arguing against the sufficiency of the evidence on direct appeal would have been “frivolous” given the amount of evidence against the petitioner.
The petitioner testified in rebuttal that the only photograph he ever received was one of an automobile; he never had any photographs of the victim's body or remains in his possession.
On May 22, 2014, the post-conviction court entered an order denying the petition, finding that the petitioner's claim of prosecutorial misconduct based on the late disclosure of the witness was an issue that had already been litigated on direct appeal and that the petitioner failed to show either a deficiency in counsel's performance or a resulting prejudice to his case.

Cummins II, 2015 WL 4126737, at *3-4.

         III. ISSUES PRESENTED FOR REVIEW

         In his pro se petition, Petitioner raises the following claims:

         1. His right to due process was violated when:

a. The trial court refused to grant a continuance
b. The prosecutor deliberately concealed a material witness until the day of trial
c. The prosecutor deliberately admitted evidence regarding Petitioner's prior bad acts

         2. Ineffective assistance of trial counsel for:

a. failing to object to admission of prior bad acts evidence against Petitioner
b. improperly influencing Petitioner not to testify
c. not calling a witness from jail to contradict Brian's Smith's testimony that Petitioner showed him photographs of the victim's body

(Doc. No. 1; Doc. No. 35.)

         IV. STANDARD OF REVIEW

         This matter is governed by the provisions of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”). See Penry v. Johnson, 532 U.S. 782, 792 (2001). AEDPA “dictates a highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005) (citations omitted); see Hardy v. Cross, 565 U.S. 65, 66 (2011); Felkner v. Jackson, 562 U.S. 594, 597 (2011). “AEDPA requires heightened respect for state court factual and legal determinations.” Lundgren v. Mitchell, 440 F.3d 754, 762 (6th Cir. 2006). ‚ÄúState-court factual findings . . . are presumed ...


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