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Flinn v. Sexton

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

March 7, 2018

JAMES M. FLINN, Petitioner,
v.
DAVID A. SEXTON, Respondent.

          MEMORANDUM OPINION

         This is a pro se prisoner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 [Docs. 1, 14, 20].[1] 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 DISMISSED.

         I. PROCEDURAL HISTORY

         An 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.

         II. BACKGROUND

         The 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].

         The 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].

         The 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. § 39-11-201(a)(4):

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 as well.
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 controlling precedent.
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).

         III. STANDARD OF REVIEW

         Under 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 ...


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