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Ware v. Mays

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

March 7, 2018

WALTER ANDREW WARE, Petitioner,
v.
TONY MAYS, [1] Respondent.

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

          S. THOMAS ANDERSON, CHIEF UNITED STATES DISTRICT JUDGE.

         Petitioner 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.

         I. BACKGROUND

         The 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. 15, 2012).

         A. Petitioner's Trial and Direct Appeal

         In 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.

         At 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.

         Elendt 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).

         On 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.

         Dana 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 way.” Id.

         Union 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. at *8.

         Dr. 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.

         She 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.

         On 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.

         The 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.

         The 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.

         Petitioner 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, 2012).

         B. Post-conviction Proceedings

         On 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).

         C. Federal Habeas Petition

         On 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 ...

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