United States District Court, W.D. Tennessee, Eastern Division
ORDER DIRECTING CLERK TO MODIFY DOCKET, DENYING
§ 2254 PETITION, DENYING CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
THOMAS ANDERSON, CHIEF UNITED STATES DISTRICT JUDGE.
Walter Andrew Ware, a prisoner of the State of Tennessee, has
filed a pro se petition (ECF No. 1) under 28 U.S.C.
§ 2254 seeking habeas corpus relief (the
“Petition”). For the reasons that follow, the
Petition is DENIED.
following background summary is drawn from the state court
record (ECF No. 16), and the state appellate court's
recitation of the evidence at Petitioner's trial. See
State v. Ware, No. W2010-01992-CCA-R3-CD, 2011 Tenn.
Crim. App. LEXIS 764 (Tenn. Crim. App. Oct. 7, 2011),
perm. app. denied 2012 Tenn. LEXIS 130 (Tenn. Feb.
Petitioner's Trial and Direct Appeal
October 2009, a grand jury of Obion County, Tennessee,
returned an indictment against Petitioner and Jacqueline
Elendt on charges of aggravated child abuse, aggravated child
neglect, and aggravated child endangerment. Technical Record
No. CC-09-CR-133, at 4-5, Dec. 21, 2010, ECF No. 16-1. Elendt
pleaded guilty to child abuse and child neglect.
Ware, 2011 Tenn. Crim. App. LEXIS 764, at *2. And
she agreed to testify against Petitioner. Id.
trial, Elendt testified that she is the mother of N.W., an
infant, and Petitioner is N.W.'s father. N.W. was born in
May 2009. Id. When N.W. was a month old, the family
moved into the home of Dana Northam, a friend. Id.
In July 2009, Elendt was employed at an Arby's
restaurant, and Petitioner was unemployed. Id. at
*3. On July 28, 2009, Elendt worked from 11:30 am. until 4:30
p.m. while Petitioner stayed home and cared for the infant.
Id. Elendt testified that “[w]hen she left for
work that morning, N.W. appeared fine.” Id.
“When she returned, [Petitioner] ‘barely [let
her] take care of'” the baby. Id. During
the night, N.W. awoke several times and Petitioner “got
up with her each time.” Id. The next day,
Elendt noticed a bruise on the child's face. When she
asked Petitioner about it, Petitioner “told her that
‘she was a baby and to leave it alone.'”
Id. Elendt did not notice anything else wrong with
N.W. during the remainder of the day, although “she did
not hold [her] during this time and . . . [Petitioner]
primarily took care of her.” Id. at *4.
further testified that “[a]t 2:00 a.m. . . . the
following [day], N.W. awoke with a fever.” Id.
She gave the child Tylenol and fed her, but the infant
“threw up” the milk. Id. She asked
Northam for a thermometer, but Northam told Elendt that she
did not have one. Elendt then noticed that N.W. “was
‘shaking on one side of her body and her eyes were
twitching.'” Id. She woke Petitioner up
and told him that they needed to take N.W. to the hospital.
Id. Petitioner stated that he did not want to take
the child to the hospital, but he “finally
acquiesced” upon Elendt and Northam's urgings.
Id. at *4-5. As they were getting into the car,
Petitioner “said to Elendt, ‘It's gonna be
[you] and [me] if there was nothing wrong with
her.'” Id. at *5 (alteration in original).
cross-examination, Elendt acknowledged that Northam's
boyfriend and her six- or seven-year-old son also lived at
her house. Id. Elendt agreed that she would receive
judicial diversion in exchange for her guilty pleas and her
testimony against Petitioner. She stated that she “did
not recall Northam ever watching N.W. so that [Petitioner]
could” work. Id. But Elendt then conceded that
she had told the Department of Children's Services
“that Northam watched N.W. so that [Petitioner]
could” detail cars. Id.
Northam testified “that she babysat N.W. a ‘few
times' for ‘a couple of hours' while”
Elendt and Petitioner “lived with her, ” but
Northam also stated that “she never babysat for N.W.
while [Petitioner] was working because he did not ever go to
work while he lived with her.” Id. at *6. She
stated that in the early hours of July 30, 2009, Elendt asked
her for a thermometer, which Northam did not have.
Id. She recalled that Petitioner and Elendt
“began arguing because Elendt wanted to take N.W. to
the hospital and [Petitioner] did not.” Id. at
*7. When police questioned Northam, she “denied ever
shaking N.W. and denied ever seeing anyone else shake
N.W.” Id. On cross-examination, she
acknowledged that “she had previously stated that both
Elendt and [Petitioner] . . . look[ed] for a
thermometer.” Id. She said she had never
observed “either parent do anything she deemed
‘inappropriate' with N.W. or endanger N.W. in any
City Police Officer Todd Wright then “testified that he
responded to a call from hospital staff about the possible
child abuse of N.W.” Id. While at the
hospital, he viewed and took pictures of N.W. and interviewed
Elendt and Petitioner. See Id. at *7-8. Wright
showed the jury the photographs of the victim. Id.
Karen Lankin, an expert in the field of pediatric medicine
and the Medical Director for the Lebonheur Child Assessment
Program at Lebonheur Children's Medical Center in
Memphis, testified that “Union City Hospital
transferred N.W. to LeBonheur Children's Medical Center,
on July 30, 2009.” Id. That same day, the
infant's “treating physician sought Dr.
Lankin's consultation.” Id. at *8-9. Dr.
Lankin examined N.W., and observed “bruises on [her]
arms, torso, back, right thigh, above her right cheek and
right eyelid, and on her right ear.” Id. at
*9. The infant also had seven fractured ribs, fractured
tibias, and a fractured right femur. Id. A CT
suggested a possible skull fracture but was not conclusive
“because of the swelling.” Id. N.W. also
had “‘extensive retinal hemorrhages' in both
her eyes, ” “‘extensive bleeding or
hemorrhaging on both hemispheres of [the] brain and a
significant area of a hematoma in . . . her brain . . .
.'” Id. at *10. Dr. Larkin opined that
“N.W. had suffered abusive head trauma, ” which
had resulted in the child's seizures. Id.
testified that “N.W.'s injuries were consistent
with ‘Shaken Baby Syndrome, ' and [that] the
injuries were life-threatening.” Id. at *11.
She stated “that doctors were unable to definitively
determine precisely how old the injuries were but that they
were no more than ‘a few days old.'”
Id. at *10. “[A]fter gathering N.W.'s
medical history, and the statements from her caregivers, she
determined that all N.W.'s injuries occurred during one
event within 72 hours of her first CT scan.”
Id. at *11.
cross-examination, Dr. Larkin acknowledged that “an
infant can suffer skull fractures from falling . . . out of
someone's arms or off of a changing table” or from
the use of forceps at birth. Id. She further stated
that “N.W.'s pediatric records indicated that
Jacqueline Elendt . . . was her primary caretaker.”
Id. at *11-12.
defense called Calvin Walter Ware, Petitioner's father,
to the stand. Id. at *12. Calvin testified that N.W.
“was doing ‘pretty good . . . considering, '
. . . was crawling and talking, ” and “seemed
like a normal one-year-old child.” Id.
jury convicted Petitioner of aggravated child abuse,
aggravated child neglect, and aggravated child endangerment.
Id. The convictions were merged, and Petitioner was
sentenced to sixteen years' imprisonment. Id.
took an unsuccessful direct appeal, id. at *30, and
the Tennessee Supreme Court denied permission to appeal.
State v. Ware, 2012 Tenn. LEXIS 130 (Tenn. Feb. 15,
December 11, 2012, Petitioner filed a pro se
petition for state post-conviction relief, alleging
ineffective assistance of counsel. Technical Record No.
CC-12-CR-154, at 2-4, July 30, 2013, ECF No. 16-14. An
attorney was appointed to represent him. Id. at
56-57. After holding an evidentiary hearing, the
post-conviction court denied relief. Id. at 67-70.
Petitioner unsuccessfully appealed. Ware v. State,
No. W2013-01079-CCA-R3-PC, 2014 Tenn. Crim. App. LEXIS 498,
at *11 (Tenn. Crim. App. Apr. 28, 2014), perm. app.
denied 2014 Tenn. LEXIS 656 (Tenn. Sept. 3, 2014).
Federal Habeas Petition
October 21, 2014, Petitioner filed his Petition, in which he
asserts the following claims:
Claim 1: The evidence was insufficient to support the
convictions. Pet. Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody, at 5, Oct. 21,
2014, ECF No. 1 [hereinafter “Pro Se Pet.”].
Claim 2: Trial counsel rendered ineffective assistance by
failing to call Dr. O.C. Smith as a ...