United States District Court, E.D. Tennessee, Knoxville
JAMES M. FLINN, Petitioner,
DAVID A. SEXTON, Respondent.
a pro se prisoner's petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 [Docs. 1, 14,
Respondent filed answers thereto, as well as copies of the
state record [Docs. 17, 21, 27, 31-33]. Petitioner filed a
reply [Doc. 28]. After reviewing all of the relevant filings,
including the state court records, the Court finds that the
record establishes that Petitioner is not entitled habeas
relief. Accordingly, no evidentiary hearing is warranted,
see Rules Governing § 2254 Cases, Rule 8(a) and
Schirro v. Landrigan, 550 U.S. 465, 474 (2007),
Petitioner's § 2254 petition [Docs. 1, 14, 20] will
be DENIED, and this action will be
Anderson County jury found Petitioner guilty of one count of
first-degree murder. State v. Flinn, No.
E2009-00849-CCA-R3-CD, 2013 WL 6237253, at *1 (Dec. 3, 2013).
In his appeal of this conviction, Petitioner raised a number
of arguments, including the argument that his right to due
process was violated because the State failed to prove that
the offense was committed before the return of the indictment
as required by Tenn. Code Ann. § 39-11-201(a)(4) [Doc.
33-1 p. 58- 64]. The Tennessee Court of Criminal Appeals
(“TCCA”) found that the evidence sufficiently
established that the offense was committed before the return
of the indictment, however, and therefore affirmed
Petitioner's conviction. Id. at 49-50, 83.
indictment charging Petitioner with first-degree murder in
the underlying criminal proceedings states as follows:
THE GRAND JURORS FOR THE STATE OF TENNESSEE, duly elected,
impaneled, sworn, and charged to inquire in and for the body
of the County of Anderson in the state aforesaid, upon their
oath, present that
JAMES MICHAEL FLINN
heretofore, to wit, on or about July 21, 2005 before the
finding of this indictment, in the County aforesaid, did then
and there unlawfully, intentionally and with premeditation
kill Greig George Beggs, in violation of T.C.A. 39-13-202,
against the peace and dignity of the State of Tennessee.
[Doc. 32-23 p. 36]. The record establishes that this
indictment was read to the jury and was an exhibit to the
trial [Doc. 31-8 p. 4; Doc. 32-23 p. 36]. The record further
demonstrates that an investigator testified at
Petitioner's criminal trial about his investigation of
the Beggs murder and the evidence that came up therein,
stating in relevant part that he “focused his energy on
the information and evidence that [they] had and it
ultimately ended up in the indictment and arrest of
[Petitioner]” [Doc. 31-15 p. 51-52].
jury instructions in the underlying criminal proceedings
stated in relevant part that “[t]he indictment in this
case is the formal written accusation charging the defendant
with a crime. It is not evidence against the defendant and
does not create any inference of guilt . . . . statements,
arguments[, ] and remarks of counsel are intended to help you
in understanding the evidence and applying the law, but they
are not evidence. If any statements were made that you
believe are not supported by the evidence, you should
disregard them” [Doc. 32 p. 1-2].
Tennessee Criminal Court of Appeals (“TCCA”)
stated as follows in denying Petitioner relief for his claim
that his right to due process was violated because the State
failed to prove that the offense was committed before the
return of the indictment as required by Tenn. Code Ann.
The Defendant argues that his due process rights were
violated because the State failed to prove that the offense
was committed before he was indicted. See T.C.A.
§ 39-11-201(a)(4) (2010). He argues that the record does
not show the jury was present when the indictment was read
and that the reading of the indictment did not make the
indictment date evidence because it was hearsay and read by
the prosecutor, not a witness. The State claims that
sufficient proof exists to show that the crime was committed
before the Defendant was indicted. We agree with the State.
Tennessee Code Annotated section 39-11-201(a)(4) (2010)
provides that no person may be convicted of an offense unless
the State proves beyond a reasonable doubt that the
“offense was committed prior to the return of the
formal charge.” In State v. Brown, 53 S.W.3d
264 (Tenn.Crim.App.2000), this court stated the following
regarding this requirement:
Granted, this is an easy matter to prove.... [The] indictment
itself can establish the date upon which it was returned.
Thus, the reading of the indictment to the jury, coupled with
evidence of when the offense was committed, would establish
that the offense was committed prior to the return of the
indictment. Also, the State could merely ask an appropriate
witness whether the actions of the defendant constituting the
offense occurred before the defendant was charged with that
offense. This would satisfy the requirements of the statute
Id. at 279. In [Brown], this court reversed
the defendant's convictions because there was “no
evidence that the indictment was ever read to the jury or
shown to the jury, and no witness was asked whether the
offense occurred prior to the return of the
indictment.” Id. at 279-80. This court
concluded, though, that the State's failure to prove the
offense occurred before the return of the indictment did not
prevent the retrial of the defendant. Id. at 280.
As a preliminary matter, we note the Defendant's argument
that Brown is wrong and inconsistent with the laws
of this state. “Opinions reported in the official
reporter . . . shall be considered controlling authority for
all purposes unless and until such opinion is reversed or
modified by a court of competent jurisdiction.” Tenn.
S.Ct. R. 4(G)(2). The opinion is published and remains the
According to the trial transcript, the prosecutor read the
indictment to the jury. The record shows that the indictment
was returned on February 7, 2006. During the trial, Special
Agent Corbitt testified that he was assigned to investigate a
homicide that occurred in Norris, Tennessee on July 21, 2005.
Officer Foust testified that on July 21, 2005, he responded
to a call that shots had been fired and that the victim had
been shot at 88 West Norris Road. Trooper Carr testified that
on July 21, 2005, he received a call over the radio about a
shooting at 88 West Norris Road. Paramedics Shetterly and
Sweet both testified about responding to a call for a
shooting victim on July 21, 2005. The victim's neighbors
testified about hearing shots the morning of July 21, 2005.
We conclude that the evidence sufficiently shows that the
offense was committed before the return of the indictment.
State v. Flinn, No. E2009-00849-CCA-R3-CD, 2013 WL
6237253, at *49-50 (Tenn. Crim. App. Dec. 3, 2013).
STANDARD OF REVIEW
the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), codified in 28 U.S.C. § 2254,
et. seq., a district court may not grant habeas
corpus relief for a claim that a state court adjudicated on