United States District Court, W.D. Tennessee, Eastern Division
GREGORY D. DOUGLAS, Petitioner,
BRUCE WESTBROOKS, Respondent.
ORDER DENYING § 2254 PETITION, DENYING
CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN
THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE.
D. Douglas, a Tennessee state prisoner, has filed a petition
under 28 U.S.C. § 2254 seeking habeas corpus relief.
(Pet., ECF No. 2.) For the reasons that follow, the Petition
following background summary is drawn from the state court
record (Index St. Rec., ECF No. 14) and the state appellate
court's recitation of the evidence at Douglas's
trial. See State v. Douglas, No.
W2010-00472-CCA-R3-CD, 2011 WL 2899191, at *1 (Tenn. Crim.
App. July 20, 2011).
2008, Douglas was indicted by a Madison County grand jury on
one count of second degree murder. (Indict., ECF No. 14-1 at
5-6.) At trial, Nadia Rogers testified that the defendant
spent the night at her house on May 4, 2008, “and was
still at the house before 7:30 a.m.” the next morning.
Douglas, 2011 WL 2899191, at * 1. When Douglas left
the house around that time, Rogers heard shots outside and
observed the defendant drive away in a brown Chevrolet with
Michigan tags. Id. She “walked down the
driveway and saw the victim, James Staten, “lying
halfway on the driveway and halfway on the street.”
Id. After approaching the victim, she asked him who
shot him and “he responded that it was the
defendant.” Id. She went back into the house
and dialed 911. Id.
also testified that she had dated the victim in 2006 and that
he “normally came to her house at 8:00 a.m. each
[week]day . . . to pick up her son to take him to
school.” Id. On cross-examination, Rogers
acknowledged that she had told police on May 7, 2008, and
later had testified at the preliminary hearing, that the
defendant arrived at her house on the morning of the shooting
to retrieve a phone charger. Id. at *2. She
explained that she “may not have testified” at
the hearing “about his spending the night because she
had been very upset at the time . . . .” Id.
police officers Charles Trull and Mark Wray each testified
that they arrived separately at the crime scene at 209 Hardee
Street, Jackson, shortly after Rogers's 911 call. Neither
officer encountered a Chevrolet Caprice while en route. (Tr.
Trans., ECF No. 14-5 at 42, 62-63.) See also
Douglas, 2011 WL 2899191, at * 1. At the crime scene,
Wray observed the victim, still alive, lying face down with
multiple gunshot wounds. The officer asked the victim who
shot him “but the victim's only response was that
he was having trouble breathing.” Id.
Rogers's neighbors testified that they left their
respective homes and walked to the crime scene after hearing
multiple gunshots. Id. at *2. One stated that as he
approached Rogers's driveway, he saw a gray-colored
Chevrolet back-up and drive away. The other neighbor reported
seeing the same, except he described the vehicle as brown.
police investigator Tyreece Miller testified that the day
after the shooting the police found a “brown Chevrolet
car with Michigan license plates . . . parked behind an
abandoned house . . . .” Id. at *3. “He
said that the did not see any tire tracks in the tall grass
around the vehicle” and “estimated that [it] had
been parked for ‘awhile' because the weeds around
the car had ‘a chance to stand back up.'”
Id. He further testified that a gun was found in a
tree near the car. Id.
forensic scientist testified that the gun found in the tree
“was not the same weapon that fired the cartridge
cases” found at the crime scene. Id. at *2. A
forensic latent fingerprint examiner testified that some of
the fingerprints found on the Chevrolet Caprice belonged to
the defendant and, although “there was no way to
determine the age of a print, ” the “life
expectancy” of the fingerprints found on the car
“would be pretty short.” Id. at *3
(internal quotation marks omitted).
witnesses testified that Douglas spent the day and evening
before the shooting at his best friend's house and drove
his friend to school in a Nissan Maxima around 10:00 a.m. the
day of the shooting. Id. at *4. Witnesses also
stated that the Chevrolet Caprice was inoperable and was
placed behind the abandoned house days or weeks prior to the
shooting, and that the defendant's mother, not the
defendant, had the keys to the car. Id.
was convicted of second degree murder and sentenced to
twenty-five years in the Tennessee Department of Correction.
Id. Petitioner appealed, challenging his sentence
under Tennessee law and arguing that the evidence was
insufficient to convict him. (Dir. App. Br., ECF No. 14-11 at
4.) See also Douglas, 2011 WL 2899191, at *1. The
TCCA affirmed the convictions and sentence. Id. at
*8. Douglas did not apply for permission to appeal to the
Tennessee Supreme Court.
October 13, 2011, Douglas filed a pro se petition
asserting numerous claims for state post-conviction relief,
including the ineffective assistance of trial counsel, errors
at sentencing, the insufficiency of the evidence to convict,
errors by the trial court, and misconduct by the prosecution
in failing to correct alleged perjured testimony and to
turn-over exculpatory evidence. (P-C Pet., EFC No. 14-14 at
4-15.) Counsel, who was later appointed to represent
Petitioner, did not amend the pro se petition.
Following an evidentiary hearing, at which additional claims
were raised, the post-conviction court denied relief. (P-C
Order and Findings, ECF No. 14-14 at 34-35, 57-58.)
appealed the denial of three ineffective assistance claims:
(1) counsel “did not meet with [him] an adequate number
of times, ” (2) “failed to provide [him] with a
copy of his discovery materials, ” and (3)
“failed to object to [Nadia Rogers's] hearsay
statement identifying [him] as the shooter.”
Douglas v. State, No. W2012-02528-CCA-R3-PC, ECF No.
14-18 at 5 (Tenn. Crim. App. Nov. 1, 2013)
(unpublished). (See also P-C App. Br., ECF No.
14-16 at 18.) He did not apply for permission to appeal to
the Tennessee Supreme Court.
Federal Habeas Petition
December 8, 2014, Douglas filed his Petition, in which he
asserts the following claims:
Claim 1: Trial counsel provided ineffective assistance by:
Claim 1A: Failing to provide a copy of the State's
discovery to Petitioner (Pet., ECF No. 2 at 8);
Claim 1B: Failing to object to Nadia Rogers's hearsay
testimony that the victim identified Petitioner as the
Claim 1C: Failing to file a motion to suppress the gun
Claim 2: The trial court erred in admitting the gun into
evidence. (Id. at 10-11.)
Claim 3: The evidence was insufficient to support the
conviction for second degree murder. (Id. at 14.)
Claim 4: The prosecutor committed prosecutorial misconduct.
(Id. at 17.)
3, 2016, Respondent filed a Response to the Petition arguing
that each claim is either without merit or procedurally
defaulted. (Resp., ECF No. 15.) Petitioner filed a Reply on
May 26, 2016 (Reply, ECF No. 17), and later a Supplemental
Reply in which he provides additional legal authority (Supp.
Reply, ECF No. 18). Upon review of the parties' arguments