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Douglas v. Westbrooks

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

February 6, 2018

GREGORY D. DOUGLAS, Petitioner,
v.
BRUCE WESTBROOKS, Respondent.

          ORDER DENYING § 2254 PETITION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          S. THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE.

         Gregory 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 is DENIED.

         BACKGROUND

         The 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).

         I. Petitioner's Trial

         In late 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.

         Rogers 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.

         Jackson 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.

         Two of 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. Id.

         Lead 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.

         A 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).

         Defense 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.

         Douglas 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.

         II. Post-conviction Proceedings

         On 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.)

         Petitioner 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).[1] (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.

         III. Federal Habeas Petition

         On 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 shooter (id.);
Claim 1C: Failing to file a motion to suppress the gun (id.).
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.)

         DISCUSSION

         On May 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 and ...


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