United States District Court, E.D. Tennessee, Greeneville
RONNIE GREER UNITED STATES DISTRICT JUDGE.
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.
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]. 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]. Petitioner's motion for new trial
[Id. at 192-97] was overruled by the trial court
[Id. at 206].
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]. 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).
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].
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).
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].
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.
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.
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.
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
STANDARD OF REVIEW
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).
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
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
§ 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].
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.]
PROCEDURALLY DEFAULTED CLAIMS
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).
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).
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
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.
of Evidence-Venue (Claim 2)
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
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].
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).
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
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.
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
Petitioner's second habeas claim alleging insufficient
evidence as to venue will be DISMISSED.
Trial Court Error-Failure to Disqualify Juror (Claim
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).
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.
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.
Petitioner's sixth habeas claim alleging trial court
error in failing to dismiss a disqualified juror will be
Prosecutorial Misconduct-Witness (Claim 10)
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
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.
Trial Court Error-Failure to Exclude Evidence (Claim
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 ...