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Allen v. Parris

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

March 30, 2018

THOMAS NATHANIEL ALLEN, Petitioner,
v.
MIKE PARRIS, Respondent.

          MEMORANDUM OPINION

          J. RONNIE GREER UNITED STATES DISTRICT JUDGE.

         Presently before the Court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 [Doc. 1] filed pro se by Petitioner Thomas Nathaniel Allen challenging his 2006 Tennessee state court conviction for first degree murder. Respondent has filed an answer to the petition [Doc. 17] and a copy of the state court record [Doc. 19]. Petitioner has filed a reply to the answer [Doc. 21] and an amended reply [Doc. 23]. For the following reasons, Petitioner's § 2254 petition will be DENIED and this action will be DISMISSED WITH PREJUDICE.

         I. PROCEDURAL HISTORY

         Petitioner was charged in a one-count supercedeas indictment in Hamblen County, Tennessee, with the first degree murder of Don Wilder, Jr., in violation of Tennessee Code Annotated §§ 39-13-202(a)(1) and 39-11-402 [Doc. 19 Addendum 3 at 4].[1] Following a four-day trial, a jury returned a verdict of guilty [Id. at 187]. Petitioner was sentenced to a term of life imprisonment [Id. at 191].[2] Petitioner's motion for new trial [Id. at 192-97] was overruled by the trial court [Id. at 206].

         Petitioner appealed his conviction and sentence to the Tennessee Court of Criminal Appeals (“TCCA”) raising eight issues: (1) the evidence is insufficient to sustain his conviction of first-degree murder; (2) the trial court erred when denying severance; (3) the trial court improperly admitted evidence about Petitioner's prior criminal charge for delivery of cocaine; (4) the trial court erred when it denied a motion for change of venue; (5) the evidence is insufficient as to cause of death; (6) the evidence is insufficient to prove the crime was committed in Hamblen County; (7) the trial court improperly accepted the State's peremptory challenges of two potential jurors; and (8) the trial court improperly allowed a juror to remain on the panel when the juror should have been disqualified for actual bias or prejudice [Doc. 19 Addendum 14].[3] The TCCA affirmed Petitioner's conviction and sentence and Petitioner's application for permission to appeal was denied by the Tennessee Supreme Court. State v. Allen, No. E2006-00984-CCA-R3-CD, 2007 WL 4117603 (Tenn. Crim. App. Nov. 19, 2007) perm. app. denied (Tenn. Feb. 25, 2008).

         Petitioner timely filed a petition for post-conviction relief and error coram nobis relief in the Hamblen County Criminal Court raising multiple claims for relief under the general grounds of ineffective assistance of counsel (19 claims), prosecutorial misconduct (four claims) and trial court error (six claims), as well as a coram nobis claim based on newly-discovered evidence [Doc. 19 Addendum 19 at 1-127]. An amended petition for post-conviction relief added six additional claims alleging due process violations [Id. at 132-38]. Following an evidentiary hearing, the post-conviction court denied relief [Doc. 19 Attachment 20 at 142-53].

         Petitioner appealed the denial of post-conviction and coram nobis relief to the Tennessee Court of Criminal Appeals (“TCCA”) raising three issues: (1) ineffective assistance of counsel for failure to investigate or call several witnesses at trial; (2) ineffective assistance of counsel for failure to retain a jury consultant; and (3) prosecutorial misconduct by instructing a witness not to talk to the defense [Doc. 19 Addendum 24 at 1-23]. The judgment of the post-conviction court was affirmed by the TCCA and Petitioner's application for permission to appeal was denied by the Tennessee Supreme Court. Allen v. State, No. E2010-01971-CCA-R3-PC, 2012 WL 826522 (Tenn. Crim. App. March 13, 2012) perm. app. denied (Tenn. Oct. 1, 2012).

         Petitioner later filed a petition to reopen post-conviction proceedings in the Hamblen County Criminal Court alleging ineffective assistance of post-conviction counsel [Doc. 19 Addendum 29 at 002736-002748]. The motion was denied [Id. at 002762-002764] and Petitioner's request for permission to appeal was denied by the TCCA [Doc. 19 Addendum 31].

         II. FACTUAL BACKGROUND

         The TCCA succinctly summarized the facts of this case in its opinion on direct appeal as follows:

This case arises from the murder of Donald Wilder, Jr., which occurred in June of 2003. The State alleged that Defendant Smith shot and killed Wilder with the assistance of his girlfriend, Defendant Jarnigan. The State further alleged that Defendant Allen requested that the murder be committed, provided drugs to assist in the killing, and provided money and drugs in exchange for the killing. The Defendants were all charged with first degree premeditated murder, with Defendants Jarnigan and Allen being charged under the theory of criminal responsibility.

State v. Allen, 2007 WL 4117603, * 1.

         The decision of the TCCA sets forth a lengthy summary of the testimony and evidence from the joint trial of Petitioner and his co-defendants. Id. at *1-15. Based upon that evidence, the jury convicted each Defendant of first degree murder. Id. at *15.

         The opinion of the TCCA affirming the decision of the post-conviction court contains a recitation of the evidence presented at the evidentiary hearing held by the post-conviction court and summarizes the testimony heard from Petitioner, his trial counsel and numerous other witnesses in that proceeding. Allen v. State, 2012 WL 826522 at *1-4. Following the hearing, the post-conviction court concluded that Petitioner had failed to meet his burden of proof and denied the petition on all grounds for relief. Id. at *4.

         To the extent the facts and evidence from Petitioner's trial and post-conviction relief hearing are relevant to the claims raised by Petitioner in his § 2254 petition, they will be addressed in more detail below in the analysis of those specific claims.

         III. STANDARD OF REVIEW

         A state prisoner is entitled to habeas corpus relief “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, which amended § 2254, sets forth “an independent, high standard to be met before a federal court may issue a writ of habeas corpus to set aside state-court rulings.” Uttecht v. Brown, 551 U.S. 1, 10 (2007). By this standard, when a state court adjudicates a claim on the merits, habeas relief is available only if the adjudication of that claim “(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).

         A state court 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 has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court's ruling is an “unreasonable application of” clearly established federal law if the state court identifies the correct governing legal principle from Supreme Court precedent but unreasonably applies it to the facts of the particular state prisoner's case. Id. at 407. The habeas court is to determine only whether the state court's decision is objectively reasonable, not whether, in the habeas court's view, it is incorrect or wrong. Id. at 411.

         Under the AEDPA, a habeas petitioner must “‘show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). This standard is “difficult to meet, ” “highly deferential, ” and “demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Harrington, 562 U.S. at 102; Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).

         IV. ANALYSIS

         Petitioner's § 2254 petition raises eleven grounds for habeas relief: (1) the evidence is insufficient to support his conviction; (2) the evidence is insufficient to establish venue; (3) the trial court erred in denying his motion for change of venue based on pretrial publicity; (4) the trial court erred in denying his motion for severance; (5) the trial court erred in permitting improper use of peremptory challenges; (6) the trial court erred in failing to disqualify a juror and not holding a hearing; (7) the trial court erred in allowing evidence of a prior criminal drug charge; (8) ineffective assistance of counsel for failing to call six witnesses; (9) ineffective assistance of counsel for failing to hire a jury consultant; (10) prosecutorial misconduct in refusing to allow a witness to speak to the defense; and (11) ineffective assistance of post-conviction relief counsel [Doc. 1].

         Respondent asserts that claims two, six, seven and ten have been procedurally defaulted because they were not fairly or adequately presented to the highest available state court as required under the exhaustion requirement of 28 U.S.C. § 2254(b) and now are barred from presentation to the state courts under Tennessee procedural rules [Doc. 17]. Respondent further argues that claim eleven is not cognizable in a federal habeas proceeding [Id.]. Finally, Respondent argues that relief is not appropriate on any of Petitioner's other claims because the adjudication of those claims on the merits in state court did not result in a decision that was contrary to, or an unreasonable application of, clearly established Federal law, or that was based on an unreasonable determination of the facts in light of the evidence presented [Id.]

         A. PROCEDURALLY DEFAULTED CLAIMS

         Before a federal court may review a federal claim raised in a habeas petition, it first must determine whether the petitioner has exhausted the remedies available 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).

         The 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 (1) to raise those claims in the state courts while state remedies were available, or (2) to 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 Cir. 2006). A petitioner who fails to raise a 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.

         Here, Petitioner asserts several grounds for relief in his habeas petition that have been procedurally defaulted because they were not fairly presented to the state courts and he now is barred by state procedural rules from returning to state court to pursue them. Because Petitioner has not shown cause or prejudice excusing his default, federal habeas review of the following procedurally barred claims is foreclosed.

         1.Sufficiency of Evidence-Venue (Claim 2)

         Petitioner's second claim alleges that the evidence was insufficient to sustain the jury's finding that Hamblen County was the proper venue because, he alleges, the proof at trial showed the killing took place in Jefferson County [Doc. 1-1 at 4]. Petitioner's claim is framed as a violation of the Sixth Amendment.

         The Court finds that Petitioner did not fairly present this claim to the state court as a federal constitutional violation. Although Petitioner argued on direct appeal that the trial court erred in not dismissing the case for failure to prove venue, he did so solely under Article I, Section 9 of the Tennessee Constitution, Tennessee Rule of Criminal Procedure 18, and cited only state law cases in support [Doc. 19 Addendum 14 at 43-46].

         Exhaustion of state remedies “requires that petitioners ‘fairly presen[t]' federal claims to the state courts in order to give the State the ‘‘opportunity to pass upon and correct' alleged violations of its prisoners' federal rights.'” Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275)). “If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.” Duncan, 513 at 365-66. Thus, before seeking a federal writ of habeas corpus, a state prisoner must fairly present his claim to each appropriate state court by alerting that court to the federal nature of the claim. Baldwin v. Reese, 541 U.S. 27, 29 (2004).

         In this case Petitioner did not cite to any provision of the United States Constitution in his brief to the TCCA on direct appeal nor cite to a single Supreme Court or federal case in support of his claim. Cf., Dye v. Hofbauer, 546 U.S. 1, 3-4 (2005) (claim that featured citations to specific provisions of the Constitution and four federal cases alerted the state court that the claim “was based, at least in part, on a federal right”); Trimble v. Bobby, 804 F.3d 767, 781 (6th Cir. 2015) (federal claim clearly presented to state court where claim explicitly invoked three separate federal constitutional provisions and four Supreme Court cases in support). Nor did he argue that the evidence was insufficient as to venue under the Due Process Clause of the Fourteenth Amendment or invoke the standards for such claims set forth in Jackson v. Virginia, 443 U.S. 307, 324 (1979) and In re Winship, 397 U.S. 358, 364 (1970).

         Petitioner's failure to alert the TCCA to any federal claim arising from the failure to prove venue is confirmed by the TCCA's decision on direct review, as the appellate court analyzed and denied Petitioner's claim solely under the Tennessee state constitution, the Tennessee Rules of Criminal Procedure and state case law. Allen, 2007 WL 4117603, at *19.

         Because Petitioner failed to fairly present his challenge to the sufficiency of the evidence as to venue as a federal constitutional claim to the TCCA on direct appeal, he failed to exhaust that claim, and he now is precluded from returning to state court to pursue it. Accordingly, his claim is procedurally defaulted. Moreover, Petitioner has asserted no cause for not raising that issue as a constitutional claim on direct appeal, nor has he asserted prejudice arising from the procedural default of that claim Finally, Petitioner cannot establish “actual innocence” as an exception to the procedural default rule. The Supreme Court has held that “in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” Murray v. Carrier, 477 U.S. 478, 496 (1986). However, “actual innocence” is an extremely narrow exception, and “claims of actual innocence are rarely successful.” Schlup v. Delo, 513 U.S. 298, 321 (1995). This is not an extraordinary case.

         Accordingly, Petitioner's second habeas claim alleging insufficient evidence as to venue will be DISMISSED.

         2. Trial Court Error-Failure to Disqualify Juror (Claim 6)

         Petitioner's sixth habeas claim alleges that the trial court erred in failing to disqualify a juror for giving false statements and omitting pertinent answers in his juror questionnaire [Doc. 1-1 at 10-11]. Specifically, he accuses juror Bill Waddell of falsely stating that he had no children, and failing to answer whether he had any family members who worked in law enforcement, when he actually does have a child who works in law enforcement [Id. at 10]. Petitioner's claim is framed as a violation of his federal constitutional right to a fair trial by a panel of impartial, ‘indifferent' jurors. Irvin v. Dowd, 366 U.S. 717, 722 (1961). He also alleges that the trial court should have conducted a hearing to inquire into the juror's misconduct. Remmer v. United States, 347 U.S. 227 (1954).

         Again, however, Petitioner did not fairly present this claim to the state court as a federal constitutional violation. Although Petitioner argued on direct appeal that the trial court erred in failing to grant a new trial based on the failure to disqualify Waddell, he did so solely under Tennessee state law, citing only state cases in support [Doc. 19 Addendum 14 at 53-55]. Petitioner did not cite to any provision of the United States Constitution in his brief to the TCCA on direct appeal nor cite to Irvin, Remmer, or any other Supreme Court or federal case in support of his claim. And, in analyzing and denying Petitioner's claim, the TCCA invoked the Tennessee Constitution and relied solely on Tennessee state case law. Allen, 2007 WL 4117603, at *25-29.

         Because Petitioner failed to fairly present his juror disqualification challenge as a federal constitutional claim to the TCCA on direct appeal, he failed to exhaust that claim, and he now is precluded from returning to state court to pursue it. Accordingly, this claim is procedurally defaulted. Moreover, as already discussed, Petitioner has asserted no cause for not raising the issue as a constitutional claim on direct appeal, nor has he asserted prejudice arising from the procedural default of that claim, and he also cannot establish “actual innocence” as an exception to the procedural default rule.

         Accordingly, Petitioner's sixth habeas claim alleging trial court error in failing to dismiss a disqualified juror will be DISMISSED.

         3. Prosecutorial Misconduct-Witness (Claim 10)

         Petitioner's tenth habeas claim alleges that the State committed prosecutorial misconduct by instructing a witness not to speak to the defense before trial [Doc. 1-1 at 21]. Specifically, he alleges that witness Connie Lawson testified at trial that she was instructed by the district attorney not to speak with any defense counsel or investigator, in violation of Petitioner's right to have access to any prospective witness.

         Petitioner raised a prosecutorial misconduct claim on this issue in his post-conviction relief petition and to the TCCA on post-conviction appeal. However, the TCCA found that Petitioner had waived this claim pursuant to Tennessee Code Annotated § 40-30-106(g) because he could have raised it on direct appeal but failed to do so, and also under Tennessee Rule of Criminal Appellate Procedure 10(b) because he failed to support it with sufficient argument and citation to authorities. Allen, 2012 WL 826522 at *8 Because the TCCA invoked state procedural rules as the basis for declining to review Petitioner's prosecutorial misconduct challenge stemming from prohibiting defense access to a witness, Petitioner has procedurally defaulted this claim. Coleman, 501 U.S. at 73. As Petitioner has failed to assert or establish cause and prejudice to excuse his default, nor can he establish actual innocence, his tenth habeas claim will be DISMISSED.

         B. NON-COGNIZABLE CLAIMS

         1. Trial Court Error-Failure to Exclude Evidence (Claim 7)

         Petitioner's seventh habeas claim alleges that the trial court erred in allowing evidence of his 2003 criminal charge for delivery of cocaine in order to show motive and intent [Doc. 1-1 at 12]. Petitioner does not assert any specific federal constitutional violation related to this claim, although he does allege that the probative value of this evidence clearly was outweighed by ...


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