United States District Court, E.D. Tennessee, Chattanooga
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE.
a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, filed by pro se prisoner Jason Osmond
Hines (“Petitioner”), challenging the
constitutionality of his confinement under a state court
judgment of two counts of second-degree murder and one count
of aggravated assault [Doc. 1]. Respondent filed a response
in opposition, as well as a copy of the state record [Docs.
14 and 15]. Petitioner filed a reply to Respondent's
response followed by an amended reply updating changes in
case law used in his earlier filing [Docs. 17 and 27]. For
the reasons set forth below, Petitioner's § 2254
petition [Doc. 1] will be DENIED, all
pending nondispositive motions will be DENIED AS
MOOT, and this action will be
December 14, 2014, Petitioner was convicted following a jury
trial of two counts of second-degree murder and one count of
aggravated assault. State v. Hines, No.
E2010-01021-CCA-R3CD, 2011 WL 5966910, at *1 (Tenn. Crim.
App. Nov. 30, 2011), app. denied (Tenn. April 11,
2012). At a separate sentencing hearing, the trial court
merged one conviction of second degree murder and the
aggravated assault conviction into the remaining second
degree murder conviction and sentenced Petitioner to
twenty-two years imprisonment. Id. Petitioner
appealed this conviction, raising the following arguments:
(1) the evidence was insufficient to support his conviction
for second degree murder; (2) the trial court erred in
excluding a drawing from evidence; (3) the trial court erred
in denying Petitioner's request for a mistrial; (4) the
State committed prosecutorial misconduct by suborning perjury
of one of its witnesses; (5) the State committed
prosecutorial misconduct by making inappropriate comments
during closing argument; (6) the cumulative effects of errors
at trial precluded a fair trial; and (7) the trial court
erred in sentencing Petitioner. Id. Discerning no
reversible error, on November 30, 2011, the Tennessee Court
of Criminal Appeals (“TCCA”) affirmed the trial
court's judgment. Id. at *12. Petitioner sought
permission to appeal to the Tennessee Supreme Court
(“TSC”), but his request was denied on April 11,
2012. Id. at *1.
August 12, 2012, Petitioner filed a timely pro se
petition for post-conviction relief. Hines v. State,
No. E2013-01870-CCA-R3PC, 2014 WL 1576972, at *1 (Tenn. Crim.
App. Apr. 21, 2014), app. denied (Tenn. Sept. 18,
2014). He was subsequently appointed counsel, and an amended
petition was filed on November 9, 2012, alleging ineffective
assistance of counsel based on counsel's failure to
properly impeach the State's witness and adequately
present a theory of self-defense. Id. Following an
evidentiary hearing on the matter, the post-conviction court
denied the petition. Id. On April 21, 2014, the TCCA
affirmed the post-conviction court's denial of relief and
on September 18, 2014, the TSC denied review. Id.
then filed the instant petition for writ of habeas corpus on
December 14, 2014 [Doc. 1]. This matter is now ripe for the
following factual background is taken from the TCCA's
opinion on appeal:
On the evening of September 9, 2007, Mr. Lovell Lightner was
at his mother's house at 3308 3rd Avenue, Chattanooga. He
saw Appellant ride up the street on a bicycle. Because Mr.
Lightner knew Appellant he began talking to him. According to
Mr. Lightner, Appellant told him that Appellant had come to
the area to rob a white person. Appellant lifted up his shirt
and showed Mr. Lightner, “something like a big old
automatic, like a .44, 9mm, or .45.”
Mr. Lightner saw Keosha Byrd and Terrell Harris, the victim,
drive down the street. Mr. Harris stopped the car and spoke
with Appellant. The victim asked Appellant whether he had the
forty dollars that he owed him. Appellant responded that he
had the money. The victim drove up the street and turned
around. He parked in front of Ms. Byrd's uncle's
house. Appellant parked his bicycle in Mr. Lightner's
mother's driveway and got into the back seat of the
Mr. Lightner began to walk towards his mother's house. He
heard a gunshot and turned around. He saw Ms. Byrd jump out
of the car and run up to the door of 3303 3rd Avenue. He
could see the victim and Appellant struggling inside the car.
He heard a second shot. He saw Appellant jump out of the car
and run away.
Mr. Lightner ran to his mother's house yelling for her to
call 911. At the same time, Ms. Byrd ran to 3303 3rd Avenue
beating the door to get into the house. He saw the victim get
out of the car and stagger around walking like a
“zombie.” He saw the victim go to Ms.
Watkins's house, at 330 3rd Avenue, and knock on the
door. When he was not let into the house, the victim went
back to the sidewalk and sat down and did not get up again.
Marquita Watkins lives at 3303 3rd Avenue. She stated at
trial that she saw Appellant and Mr. Lightner talking. She
was on her porch and heard Appellant tell Mr. Lightner that
he was in the area to rob someone. Shortly thereafter, she
saw Ms. Byrd and the victim drive up in their car. She saw
Appellant speaking to the victim while the victim was in the
car. She saw the victim drive up the street, turn around, and
come back and park on her side of the street. Ms. Watkins saw
Appellant get into the back seat of the victim's car. She
saw a “flash of light inside the car” and heard a
gunshot. Ms. Watkins saw Ms. Byrd get out of the car and run
up to her house. She let Ms. Byrd into the house, and they
She looked back out the window and saw Appellant still in the
car bending over to the front seat of the car by the victim.
Ms. Watkins saw Appellant jump out of the car, carrying
something in his hand, and run away from the scene. After
Appellant ran away, the victim got out of the car and came up
to Ms. Watkins's porch. She did not let him into the
house. The victim walked back to his car and sat down.
However, the victim could not talk because when he tried
“a big bubble of blood would come out of his mouth and
bust all over his face.”
Ms. Byrd stated that the victim had been her boyfriend. On
the date in question, Ms. Byrd and the victim were driving on
3rd Avenue when they saw Appellant. According to Ms. Byrd,
Appellant flagged them down and told the victim he wanted to
buy some crack cocaine. The victim told him that they would
be “back around” because they had to drop a
friend off at a house up the street.
Ms. Byrd testified that the victim had been selling cocaine
that day and that he had over $1, 000 in his possession. They
returned to Appellant and parked in front of Ms.
Watkins's house. Appellant got in the backseat behind the
victim. The victim said something that made Ms. Byrd turn
around and look at him. When she did that, she saw Appellant
pulling a gun from his waistband. Appellant was pointing the
gun toward the victim's face or neck. When Ms. Byrd saw
the victim trying to get out of the car, she got out and ran
to Ms. Watkins's house.
Ms. Byrd saw the victim get out of the car. She said he came
to her friend's house. When he returned to the car, he
fell on the ground. Ms. Watkins and her boyfriend went to
check on the victim by the car. Ms. Byrd said she did not see
anyone take anything from the car. She also denied that the
victim had a gun the night of the incident. Ms. Byrd gave a
statement to officers when they arrived, and she identified
Appellant in a photographic lineup immediately when she was
shown the photographs.
Officer Peter Miller was a patrol officer with the
Chattanooga Police Department. He responded to a shooting
call at the 3300 block of 3rd Avenue. When he arrived, he
found the victim lying on the ground. The victim had a single
gunshot wound. He was still alive but unable to speak.
Lieutenant Edwin McPherson worked for the Chattanooga Police
Department. He headed up the search for Appellant. On
September 11, 2007, Lieutenant McPherson received information
as to where Appellant was hiding. The officers went to the
location, found Appellant, and arrested him.
Investigator Greg Mardis, with the Chattanooga Police
Department, collected evidence at the scene of the crime. He
found $300 worth of cocaine between the console and seat of
the car. He could not find the weapon and found no shell
casings in the car. He testified that this could have been
because a revolver was used rather than an automatic weapon.
Scientists with the Tennessee Bureau of Investigation
(“TBI”) also testified at the trial. Don Carmen
testified that the bullet he received for testing was a
bullet from a .44 special Smith and Wesson. It was a revolver
bullet. Laura Hodge testified that the gunshot residue kit
collected from the victim indicated no gunshot residue. She
stated that this result did not eliminate the possibility
that the victim had gun.
An autopsy was performed on the victim. James K. Metcalfe was
the forensic pathologist with the Hamilton County medical
examiner's office who performed the autopsy. He
determined that a gunshot wound to the neck was the cause of
death. Dr. Metcalfe testified that the bullet entered the
victim's neck near his right ear, exited on the left side
of his neck, and came to rest in his shoulder. There were
also markings that suggested close-range contact.
Appellant also testified at the trial. He stated that he
arrived on 3rd Avenue and found Mr. Lightner. He spoke with
Mr. Lightner about buying some crack cocaine. He saw the
victim, whom he knew from serving time in jail together. The
victim said that he would sell him some cocaine but needed to
take a friend home who was in the backseat of the car. When
the victim returned, Appellant tried to give the victim $40,
but the victim told Appellant he needed to get into the car.
Appellant got into the backseat of the car. He placed his $40
on the console. According to Appellant, the victim grabbed
the money and started arguing with him about Appellant's
owing him money from a prior drug deal. Appellant told the
victim he needed to give him his money back or give him some
cocaine. According to Appellant, the victim pointed a gun at
him and demanded the rest of the money Appellant owed him.
Appellant testified that they began to argue and struggle
with each other to gain control of the gun. Appellant thinks
that during the struggle his finger hit the trigger and
caused the victim to accidentally shoot himself. He stated
that he got scared when the victim was shot and ran away.
Lieutenant McPherson arrested Appellant at his friend's
The Hamilton County Grand Jury indicted Appellant for one
count of first-degree murder, one count of first degree
felony murder, and one count of attempted especially
aggravated robbery. At the conclusion of a jury trial held
May 5-7, 2009, the jury convicted Appellant of two counts of
second-degree murder as lesser included offenses of the first
degree murder charges and of aggravated assault as a lesser
included offense of attempted especially aggravated robbery.
On June 8, 2009, the trial court held a separate sentencing
hearing. The trial court sentenced Appellant to twenty-two
years as a Range I, violent offender for each of the second
degree murder convictions and five years for the aggravated
assault conviction. The trial court then merged one of the
second-degree murder counts and the aggravated assault into
the remaining second-degree murder conviction. The result was
one twenty-two year sentence.
Hines, 2011 WL 5966910, at *1-3.
STANDARD OF REVIEW
Court must review Petitioner's request for habeas corpus
relief pursuant to the standards set forth in the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), which allows state prisoners to seek
federal habeas corpus relief on the ground that they are
being held in custody in violation of the Constitution, laws,
or treaties of the United States. 28 U.S.C. § 2254;
Reed v. Farley, 512 U.S. 339, 347 (1994). Congress
has mandated that federal courts review state court
adjudications on the merits of such claims using a
“highly deferential” standard of review. See,
e.g., Harrington v. Richter, 562 U.S. 86, 105
(2011). Under this deferential standard, this Court is bound
to accept the state court's findings of fact as true
unless a petitioner presents “clear and convincing
evidence” to the contrary. 28 U.S.C. §
2254(e)(1)(providing that “a determination of a factual
issue by a State court shall be presumed to be correct”
unless the petitioner rebuts that presumption with clear and
convincing evidence); see Seymour v. Walker, 224
F.3d 542, 551-52 (6th Cir. 2000). Additionally, this Court
may not grant habeas relief to a state prisoner unless the
state court's decision on the merits of his claims
“(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d).
established federal law, ” for the purposes of §
2254(d)(1), refers to rulings of the United States Supreme
Court in place at the time of “the last state-court
adjudication on the merits.” Greene v. Fisher,
132 S.Ct. 38, 44 (2011); Lockyer v. Andrade, 538
U.S. 63, 71-72 (2003) (defining clearly established federal
law as “the governing legal principle or principles set
forth by the Supreme Court at the time the state court
renders its decision”). A decision is “contrary
to” clearly established federal law if “the state
court arrives at a conclusion opposite to that reached by
[the Supreme Court] on a question of law or if the state
court decides a case differently than [the Supreme Court] on
a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 413 (2000). A
state-court decision unreasonably applies clearly established
federal law if “the state court identifies the correct
governing legal principle from [the Supreme Court's]
decisions but unreasonably applies that principle to the
facts of the prisoner's case.” Id.
standards set forth in the AEDPA's are
“intentionally difficult to meet.” Woods v.
Donald, 135 S.Ct. 1372, 1376 (2015) (quoting White
v. Woodall, 134 S.Ct. 1697, 1702 (2014)). Ultimately,
the AEDPA's highly deferential standard requires this
Court to give the rulings of the state courts “the
benefit of the doubt.” Cullen v. Pinholster,
563 U.S. 170, 181 (2011) (quoting Woodford v.
Visciotti, 537 U.S. 19, 24 (2002)).
before a federal court may review a federal claim raised in a
habeas petition, it must first determine whether the
petitioner has exhausted the remedies available to him in
state court. See 28 U.S.C. § 2254(b)(1). If a
federal habeas claim has not been presented to a state court
for adjudication, then it is unexhausted and may not properly
serve as the basis of a federal habeas petition. See
Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
exhaustion “requirement is satisfied when the highest
court in the state in which the petitioner was convicted has
been given a full and fair opportunity to rule on the
petitioner's claims.” Wilson v. Mitchell,
498 F.3d 491, 498-99 (6th Cir. 2007) (quoting Lott v.
Coyle, 261 F.3d 594, 608 (6th Cir. 2001)). Under
Tennessee Supreme Court Rule 39, a Tennessee prisoner
exhausts a claim by raising it before the TCCA. See Adams
v. Holland, 330 F.3d 398, 402 (6th Cir. 2003). A federal
court will not review claims that were not entertained by the
state court due to the petitioner's failure to (1) raise
those claims in the state courts while state remedies were
available, or (2) comply with a state procedural rule that
prevented the state courts from reaching the merits of the
claims. Lundgren v. Mitchell, 440 F.3d 754, 763 (6th
petitioner who fails to raise his federal claim in the state
courts and who is now barred by a state procedural rule from
returning with the claim to those courts has committed a
procedural default. See Coleman v. Thompson, 501
U.S. 722, 732 (1991). A procedural default forecloses federal
habeas review, unless the petitioner can show cause to excuse
the failure to comply with the state procedural rule and
actual prejudice resulting from the alleged constitutional
violation. Id. at 750.