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Winkler v. Sexton

United States District Court, E.D. Tennessee, Knoxville

February 26, 2018

DAVID SEXTON, Warden, Respondent.


         Perley Winkler (“Petitioner”), an inmate at the Morgan County Correctional Complex, brings this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging the legality of his confinement pursuant to a 2008 judgment issued by the Monroe County Criminal Court [Doc. 2]. Petitioner has also filed a memorandum in support of his § 2254 petition [Doc. 2-1]. Respondent filed a response in opposition thereto [Doc. 15], as well as a copy of the state record [Doc. 13]. For the reasons set forth below, the Court determines that no evidentiary hearing is warranted in this case, Petitioner's § 2254 petition [Doc. 2] will be DENIED, and this action will be DISMISSED.


         In 2008, after a jury trial, Petitioner was convicted of two counts of attempted first degree murder and one count of attempted aggravated arson, and sentenced to 40 years in prison [State Court Record, Attachment 1 p. 12-14]. The judgment was affirmed on direct appeal by the Tennessee Court of Criminal Appeals (“TCCA”). State v. Michael Aaron Jenkins, No. E2008- 02321-CCA-R3-CD, 2011 WL 578593 (Tenn. Crim. App. Feb. 17, 2011), perm. app. denied (Tenn. May 25, 2011).[1]

         On March 28, 2011, Petitioner filed his pro se petition for post-conviction relief, pursuant to Tennessee Code Annotated § 40-30-101, et seq., in the Monroe County Criminal Court [State Court Record, Attachment 12 p. 946]. He was thereafter appointed counsel, and the petition was twice amended [Id. at 1042]. After an October 16, 2012 evidentiary hearing, the Monroe County Criminal Court denied the amended petition on November 12, 2012 [Id. at 1053]. The TCCA subsequently affirmed this denial on February 10, 2014, and the TSC denied permission to appeal on July 16, 2014. See Perley Winkler, Jr. v. State, No. E2012-02647-CCA-R3-PC, 2014 WL 545479 (Tenn. Crim. App. Feb. 10, 2014), perm. app. denied (Tenn. July 16, 2014).

         On October 29, 2014, Petitioner filed the instant petition for a writ of habeas corpus in this Court [Doc. 2]. Respondent-Warden David Sexton-thereafter filed an answer to the petition, arguing that Petitioner's claims were all procedurally defaulted or without merit [Doc. 15]. This matter is now ripe for the Court's review.


         The following factual background is taken from the TCCA's opinion on Petitioner's appeal of the denial of his petition for post-conviction relief:

A Monroe County Criminal Court jury convicted both the petitioner and Michael Aaron Jenkins of two counts each of attempted first degree murder and one count each of attempted aggravated arson. The trial court sentenced the petitioner to 40 years' incarceration. This court affirmed the judgments on direct appeal. See State v. Michael Aaron Jenkins and Perley Winker, Jr., No. E2008-02321-CCA-R3- CD, slip op. at 1 (Tenn. Crim. App., Knoxville, Feb. 17, 2011), perm. app. denied (Tenn. May 25, 2011).

         In Michael Aaron Jenkins and Perley Winkler, Jr., this court summarized the facts of the case as follows:

John David Senn testified that about 4:00 a.m. on April 17, 2007, he was awakened by one of his pit bull dogs. Senn got up to let his dog outside, looked out the small window in his back door, and saw two men in the yard. One man was standing behind Senn's station wagon and was pouring gasoline from a red gasoline jug onto the car. Senn said that the man was standing “right there at my back door” and that he recognized the man as “Spanky, ” Michael Aaron Jenkins. Senn stated that the second man was standing behind Senn's Oldsmobile 442, that the man was wearing thick glasses, and that he recognized the man as Perley Winkler, Jr. Senn said that the yard was well lit by his back porch light and an outdoor utility light, that he got a clear view of the appellants for about five seconds, and that he saw Jenkins' side profile and Winkler's full face. Senn had seen the men one or two times previously. He said Jenkins was wearing a baseball cap with a rebel flag on it and a black jacket; he thought Winkler was wearing a black baseball cap. He said he had not given either of them permission to pour gasoline on his cars.
Senn testified that Jenkins dropped the gasoline jug and that the appellants ran into the woods. Senn woke his girlfriend, Sherri Turpin, and told her to call the police. He said he was “terrified” and grabbed his gun off the shelf above the stove. Senn walked onto the back porch and began shooting into the woods. Senn said that he fired eight shots, emptying the clip in his pistol, and that the gas fumes were burning his eyes. He said he heard a car start on Niles Ferry Road and “take off.” Senn saw that the appellants had “gassed” his jacuzzi, the back porch, the side of the house, and both cars. One of the Oldsmobile's doors was open, and gasoline had been poured inside the car. Senn had never had any personal problems with either of the appellants. However, he said that Turpin's family was involved in an ongoing feud with Winkler and that Turpin's brother, Steve Abercrombie, “had quite a few problems” with Winkler. When the police arrived at the scene, Senn told them what had happened and that Jenkins and Winkler were responsible. While Senn was talking with the police, he drank a beer to calm his nerves. Later, he picked out the appellants' photographs from a photograph array.
On cross-examination, Senn acknowledged that while Turpin was on the telephone with the 911 operator, he was giving information to Turpin. He also acknowledged that Turpin told the operator about only one man, described by Turpin to the operator as a person “with coke bottle glasses.” Senn acknowledged that on the 911 tape, he could be heard saying the man was wearing “black britches and a green shirt.” Senn told the police that one of the men was wearing an Atlanta Braves baseball cap but testified at the preliminary hearing that he saw a cap with a rebel flag on it. Regarding the man wearing the Atlanta Braves cap, Senn told the police he saw the man's “side view” for only two or three seconds. Upon being questioned by defense counsel about these discrepancies, Senn explained, “It all happened real fast.”
Clara Hitson, the Department Head of Monroe County 911, testified that Sherri Turpin's 911 call was recorded. The State played the recording for the jury. During the call, Turpin told the operator, “I seen a guy running with a gas jug and I think it was Junior Winkler.” She also told the operator, “I think he was trying to burn me out”; “I'm the sister of the guy he's wanting”; and “To get to my brother he would hurt me.”

State v. Michael Aaron Jenkins and Perley Winkler, Jr., slip op. at 2-3 (footnote omitted).

         On March 28, 2011, the petitioner filed, pro se, his initial petition for post-conviction relief, which petition was amended. Following the appointment of counsel and the amendment of the petition, the post-conviction court held an evidentiary hearing.

         The petitioner testified that trial counsel was appointed to represent him when he was arraigned on the charges in the instant case. The petitioner recalled meeting with trial counsel one time at the jail for approximately 15 to 20 minutes prior to his preliminary hearing. At that meeting, the petitioner and trial counsel reviewed the petitioner's search warrants, and trial counsel indicated that he thought the search warrants “were good.”

         The petitioner testified that he expressed his disagreement with trial counsel's position. The petitioner stated that he had also requested that trial counsel subpoena some “people from the church, ” but trial counsel apparently disagreed and did not subpoena the requested church members. Between the preliminary hearing and the trial, the petitioner saw trial counsel only “a couple of times.” On one of those occasions, trial counsel was accompanied by an investigator.

         With respect to the truthfulness of Mr. and Mrs. Senn, the petitioner testified that trial counsel “said he thought that [the Senns were] lying about some stuff but he didn't do much to prove anything different.” The petitioner testified that, once trial counsel was appointed to his case, trial counsel did not visit him for a few months and that once he did visit, he explained his absence by stating “to tell you the truth I don't make that much money on these appointed cases and I feel like I have paid my dues in small court.” The petitioner stated that trial counsel failed to appear for “a couple” of his court dates, prompting the petitioner to request that the trial court dismiss trial counsel as his attorney, which the court refused to do. When trial counsel visited the petitioner at the jail shortly thereafter, trial counsel was surrounded by several police officers, and he explained that the officers “feel like you are going to hurt me.” At that point, the petitioner expressed to trial counsel how he felt about counsel's failure to appear for his hearings as well as his belief that counsel was “not taking [his] case to[o] seriously.” According to the petitioner, trial counsel stated that, because the trial court refused to let him withdraw from the case, he intended “to do what he could” but that “there wasn't much conversation” with the petitioner after that time.

         The petitioner stated that he could not recall trial counsel's ever discussing trial strategy with him; that counsel failed to provide him with a complete copy of his file prior to trial; and that counsel did not review discovery documents with him. The petitioner testified that trial counsel had never discussed with him a notation in the State's file that Mrs. Senn was refusing to testify “unless she was paid to relocate.”

         During the trial, Mrs. Senn testified that she had not heard from the petitioner in the past five years because he “had been in prison.” Following this statement, trial counsel advised the petitioner against moving for a mistrial, assuring the petitioner that “he liked the way the trial was going and he didn't think they would find me guilty.”

         Following the trial, the petitioner spoke with trial counsel once over the telephone, but he could not recall if the conversation took place before or after the motion for new trial. The petitioner identified a letter he wrote to trial counsel on March 15, 2009, in which he inquired about his appeal and the issues that trial counsel intended to raise on appeal. The petitioner testified that trial counsel never responded to this letter and that trial counsel finally wrote to the petitioner to notify him that his appeal had been denied. The petitioner wrote several additional letters to trial counsel, and the petitioner testified that trial counsel did not respond.

         On cross-examination, the petitioner acknowledged that he takes a “very active role” in his cases, that he conducts legal research on his cases, and that he “put[s] forth some arguments” that contain “novel” theories. The petitioner agreed that “it is generally the attorney's job to take some of the arguments that you propose and figure out which ones are the best to go with in court.” The petitioner was “pretty sure” that trial counsel sent him no correspondence between the petitioner's arraignment and jury trial.

         Lisa Abercrombie, John Senn's sister-in-law, testified that she played a voicemail message for Sherri Turpin Senn in which the petitioner threatened Mrs. Abercrombie's life. Mrs. Abercrombie stated that she informed law enforcement officers about the voicemail message, but she did not turn the message over to the police.

         Andrew Freiberg testified that he was the assistant district attorney who prosecuted the petitioner in the underlying case. Mr. Freiberg testified that the district attorney's office had an “open file discovery policy, ” which permitted defense attorneys “to inspect and make a copy of our complete file.” Mr. Freiberg explained that nothing was withheld from defense counsel under this policy. As a practical matter, the right side of the file contained “all materials, including the indictment, ” and the left side of the file contained “things like witness list and work product.” Defense attorneys would arrange a time to come to the district attorney's office to review the file, or the attorneys could request that the office make a photocopy of the file for defense counsel. With respect to a document in the petitioner's file entitled “Victim Assistance Program/Victim Contact Information, ” Mr. Freiberg confirmed that it would have been on the left side of the file. Mr. Freiberg testified that only one file existed in any case in the district attorney's office and that all information contained within those files was discoverable.

         On cross-examination, Mr. Freiberg testified that the voicemail message in question did not exist at the time of trial, but he recalled that the voicemail message had been referenced or “alluded to at the time of the preliminary hearing of which [trial counsel] took part in.” With respect to Mr. Senn's credibility, Mr. Freiberg specifically recalled that Mr. Senn recognized the petitioner immediately when he saw him standing outside his residence on the morning of April 17 and that he “saw [the petitioner] dead in the face, straight on, for a number of seconds.”

         MCSD Captain Travis Jones testified that he showed Mr. and Mrs. Senn a photographic lineup on April 17, but he did not recall now many photographs it included. He stated that “the standard number is usually six different photos on one piece of paper.”

         Trial counsel testified that he had been a licensed attorney for approximately 14 years and that he had “done a lot of criminal defense work” but that it was “not [his] primary area these days.” Trial counsel admitted that he had been appointed to represent the petitioner in the instant case as well as a few additional cases. Trial counsel did not recall how many times he visited the petitioner prior to the preliminary hearing in the instant case, noting that, on occasion, he “would get appointed and potentially meet with that person just that morning.” With respect to the Senns' credibility, trial counsel testified that he attempted to impeach them through inconsistent statements and their motives for testifying, given their apparent dislike for the petitioner. When questioned about his trial strategy, trial counsel responded that his goal was to show the jury that the Senns “either made a bad identification or they lied” to establish reasonable doubt.

         Trial counsel reviewed the document entitled “Victim Assistance Program/Victim Contact Information, ” which indicated that Mrs. Senn “says if she gets no help to relocate she will not testify at trial.” Trial counsel stated that he could not recall if he had ever seen that document on a prior occasion, but he acknowledged that it could have been potentially important in his cross-examination of Mrs. Senn. Trial counsel could not recall if he had ever received a photographic lineup through the discovery process, and, with respect to the voicemail message, he could only recall that the petitioner had made a threat against the victims' family member and that he “objected to that evidence being introduced most strenuously.” Trial counsel testified that he had visited the district attorney's office and had spent time reviewing the petitioner's file and making copies. Trial counsel noted that the trial court had appointed investigators to assist him and stated that some of those investigators had likely assisted him in obtaining some of his information.

         Trial counsel testified that he spoke with the petitioner “several times” at either the Monroe County jail or over the telephone and that his investigators spoke with the petitioner “several times.” Trial counsel reported that the petitioner “was a very compliant client who . . . worked hard on his case and we worked hard with him.” Counsel testified that his “philosophy on [the petitioner's] case was to get up early in the morning, stay late at night, and that's been my philosophy on every jury trial I've ever tried and I can tell you that that's what I did in this instance in preparing for the trial.” Counsel emphasized that he was “always willing to meet with [the petitioner]” and that when the petitioner wished to speak with him, he “was never not receptive.” When asked about the occasion when the petitioner requested the trial court to appoint him new counsel, trial counsel responded that he “[did] not remember that time at all.” Trial counsel did recall being escorted by armed law enforcement officers to a visit with the petitioner at the jail, but he stated that he had not requested the officers and that he had never felt threatened by the petitioner. Trial counsel also did not recall stating that he did not have time for the petitioner's case because he was involved in “some serious federal matters.” Counsel admitted that he was defending a multimillion-dollar lawsuit during his representation of the petitioner and, therefore, if he had made a statement about not having enough time for the petitioner, “it would have been [an] accurate statement.”

         Trial counsel recalled that Mrs. Senn, during her trial testimony, had made a statement about the petitioner's having spent the past five years in jail, and he recalled discussing the possibility of requesting a mistrial at that time. Trial counsel testified that he and the petitioner made the joint decision to continue with the trial because the trial court had instructed the jury “that they were not to consider that statement, that that was to be stricken from the record.” Furthermore, trial counsel believed a request for a mistrial to be unnecessary because he felt that the trial was going well for the defense, and counsel testified that the petitioner “had a strong opinion that we should allow this case to go to the jury.” When asked why he chose not to object during the prosecutor's closing argument to statements made about the credibility and veracity of the victims, trial counsel responded that it was a strategic move and that he believed some of the prosecutor's statements actually benefitted the petitioner.

         With this evidence, the post-conviction court denied relief. The court specifically found that the petitioner failed to prove, by clear and convincing evidence, that the State suppressed any exculpatory evidence or that said evidence was unknown to trial counsel, and it further found that the petitioner failed to ...

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