Argued: June 13, 2017
from the United States District Court for the Western
District of Tennessee at Memphis. No. 2:08-cv-02425-Jon
Phipps McCalla, District Judge.
Michael J. Passino, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR
THE MIDDLE DISTRICT OF TENNESSEE, Nashville, Tennessee, for
H. Bledsoe, OFFICE OF THE TENNESSEE ATTORNEY GENERAL,
Nashville, Tennessee, for Appellee.
Michael J. Passino, Paul R. Bottei, OFFICE OF THE FEDERAL
PUBLIC DEFENDER FOR THE MIDDLE DISTRICT OF TENNESSEE,
Nashville, Tennessee, for Appellant.
H. Bledsoe, OFFICE OF THE TENNESSEE ATTORNEY GENERAL,
Nashville, Tennessee, for Appellee.
Before: COLE, Chief Judge; ROGERS and STRANCH, Circuit
ROGERS, CIRCUIT JUDGE.
Von Carruthers appeals the district court's judgment
denying his petition for a writ of habeas corpus. A Tennessee
jury convicted Carruthers in 1996 of three counts of
first-degree, premeditated murder and imposed a death
sentence for each of the three murder convictions. The
Tennessee Court of Criminal Appeals and the Tennessee Supreme
Court affirmed the convictions and sentences on direct
appeal. After the state courts denied Carruthers
postconviction relief, he filed a petition for a writ of
habeas corpus with the district court, arguing, among other
things, that he was denied counsel at critical stages of the
proceedings in violation of United States v. Cronic,
466 U.S. 648 (1984), when the trial court granted his
appointed counsel's motion to withdraw and ordered
Carruthers to proceed pro se, that the trial court violated
his Sixth Amendment right to counsel when it ordered him to
proceed pro se, and that he was not competent to stand trial
or to represent himself. The district court denied
Carruthers's petition, and this court granted a
certificate of appealability on these three issues. The
district court correctly denied relief, because Carruthers
has procedurally defaulted his Cronic and competency
claims, and the Tennessee Supreme Court's decision that
Carruthers forfeited his right to counsel was neither
contrary to nor an unreasonable application of clearly
established Supreme Court precedent.
Tennessee jury convicted Carruthers of three counts of
first-degree, premeditated murder in 1996. State v.
Carruthers, 35 S.W.3d 516, 524 (Tenn. 2000). The facts
of the underlying crimes are relevant to this appeal only as
background. In short, the prosecution introduced evidence at
trial to show that, in February of 1994, Carruthers and an
accomplice, James Montgomery, assaulted two men and a woman,
robbed them, then buried the three alive. See id. at
524-31. The victims' bodies were found buried in a
cemetery in Memphis, Tennessee about a week after they had
disappeared. Id. at 524. The jury found that the
aggravating circumstances surrounding Carruthers's crimes
outweighed the mitigating circumstances beyond a reasonable
doubt and imposed a death sentence for all three murder
convictions. Id. at 531-32.
interactions with his appointed counsel leading up to trial,
which ultimately resulted in his representing himself during
the capital murder trial, are most relevant to this appeal.
These facts, as recited by the Tennessee Supreme Court,
Carruthers' family initially retained AC Wharton, Jr., to
represent him. Wharton was allowed to withdraw on March 19,
1994, because of a conflict of interest. On May 31, 1994, the
trial court appointed Larry Nance to represent Carruthers. .
. . At a hearing held on July 15, 1994, the trial court
scheduled a pre-trial motions hearing for September 30, 1994
and set the case for trial on February 20, 1995. Carruthers
was present at this hearing and asked the trial court,
"I'd like to know why this is being dragged out like
this. I asked Mr. Nance if we can go forward with a motion of
discovery and he's asking for a reset. And I'd like
to know why." Nance informed the court that he was
planning to visit the prosecutor's office later in the
week to review the discoverable materials and evidence. The
trial judge then advised Carruthers in pertinent part as
[G]iven the fact that the trial isn't until February,
we're setting the next Court date in September for the
arguing of motions. Between now and September, your attorney
and the attorneys representing your two co-defendants can get
with the prosecutors and can obtain their discovery.
They're all excellent attorneys. And they'll all do
that. And once they've obtained the discovery,
they'll meet with their clients and they'll file
appropriate motions, which will be heard on September 30th,
which will still be well in advance of the trial date, which
will give everyone ample time to then evaluate the case,
after the motions have been heard and ruled on. So given the
fact that we can't get a three-defendant capital case
that's still in the arraignment stage to trial any
earlier than February, there's plenty of time for your
attorneys to meet with the prosecutors, get the discovery,
meet with the clients, file motions, argue motions. Just
because he hadn't done it yesterday, because you want him
to have it done yesterday, doesn't mean that he's not
working on your case diligently and properly. He'll have
everything done well in advance of the next Court date. And
so, you know, he may not do it the very moment you want it
done, but you're going to have to work with him on that
because there's ample time for him to get it done.
. . . When the pre-trial motions hearing convened on
September 30, 1994, all defense attorneys involved in the
case requested a continuance until November 14, 1994 so that
additional pre-trial motions could be filed. . . .
Because the trial judge had received "an abundance of
correspondence from both Mr. Montgomery and Mr. Carruthers
expressing concern about the pretrial investigation that has
been conducted by their attorneys, " the defendants were
brought into open court and advised of the continuance. The
trial judge then asked the attorneys to "state, for the
record, the work that they've done and the work they
intend to continue doing on behalf of their client."
Each team of defense lawyers reported to the trial judge on
the work that had been completed and on the work they
intended to complete in the following days.
. . . Nance admitted that "some enmity" had
developed between him and Carruthers, but indicated that he
believed the problem could be resolved.
Carruthers also was allowed to voice his complaints about his
attorneys on the record, and his primary complaint was that
his attorneys had not met with him as often as he had
expected. After hearing the comments of both Nance and
Carruthers, the trial judge concluded as follows:
in my opinion, what has been done thus far in this case,
given the fact that there are still six more weeks before the
next motion date, and then a full three months beyond that
before the trial date, is appropriate and well within the
standards of proper representation.
. . .
On November 14, 1994, Carruthers filed his first motion for
substitution of counsel. . . .
Although the record does not reflect that a hearing was held,
the trial court allowed Nance to withdraw from representing
Carruthers on December 9, 1994. According to statements made
by the trial court at a later hearing, Nance was allowed to
withdraw because of "personal physical threats"
made by Carruthers that escalated to the point that Nance did
not "feel comfortable or safe, personally safe, in
continuing to represent Mr. Tony Carruthers."
Coleman Garrett was appointed to replace Nance and represent
Carruthers along with Morton [another attorney who had been
appointed to assist Nance]. The trial judge also authorized
James Turner, a third attorney, to assist the defense as an
investigator. . . . On May 5, investigator/attorney James
Turner was allowed to withdraw because he was a solo
practitioner and could not maintain his practice and
effectively perform the investigation needed on the case.
However, the trial court appointed another attorney, Glenn
Wright, to act as investigator. . . .
23, 1995, Garrett, Morton, and Wright sought and were granted
permission to withdraw by the trial court. The record
reflects that Carruthers also filed a motion for substitution
of counsel. At a hearing on July 27, 1995, the trial court
appointed William Massey and Harry Sayle to represent
Carruthers. During this hearing, the trial judge commented as
All right. I understand that these three defendants are on
trial for their lives and that these are the most serious of
charges and that they are all concerned that they are well
represented and properly represented, and it's
everyone's desire to see to it that they are well
represented and properly represented. And toward that end,
efforts are being made that they are represented by attorneys
that have enough experience to handle this type of case and
by attorneys that can establish a rapport with their clients
that would allow them to represent their clients well.
We have gone through several attorneys now in an effort to
accommodate the defendants' requests in that regard, but
at some point-and in my opinion, each of the attorneys and
each of the investigators that has represented these
defendants that has been relieved have been eminently
qualified to do the job, but I have allowed them to be
relieved for one reason or another.
I want the record to be perfectly clear at this point because
of some suggestions that have already been raised by some of
the correspondence that I have received from Mr. Carruthers,
and all of it, by the way, will be made a part of the record.
But Mr. Carruthers has suggested, in his correspondence,
that some of the previous attorneys have been relieved
because they weren't capable or competent to do the job.
And that is, in my opinion, at least-my humble opinion as the
judge in this case-absolutely and totally an inaccurate
statement. The attorneys that have been relieved thus far
have been fully capable and fully competent and had been
doing an outstanding job, but for a variety of reasons,
I've allowed them to withdraw from the case.
. . .
Mr. Carruthers has raised, through his correspondence, and
apparently through direct communication with his previous
attorneys, certain matters that are pretty outrageous
suggestions, but because of the nature of the matters that
he's raised, the attorneys that represented him
previously felt that an irreparable breach had occurred
between their ability-between Mr. Carruthers and
themselves-[a]ffecting their ability to continue to represent
them. And at some point-and that could well have been the
point, but it wasn't. But at some point these matters
that are raised by the defendants cannot continue to be used
to get new counsel because it gets to be a point where
they're-it's already well beyond that point, but,
obviously, at some point, gets to the point where they're
manipulating the system and getting what they want-Mr.
Carruthers, sit still, please, or you can sit back there-
gets to the point where they're manipulating the system
and getting trial dates and representation that they want and
are calling the shots. That's another matter
that's been raised by Mr. Carruthers in some of his
correspondence, that he wants his attorneys to know that
he's the man calling the shots in this case, and he's
the man to look to.
Well, of course, again, it's a free country, and he can
say whatever he wants, and he can think whatever he wants,
but as far as I'm concerned-and this applies to all three
defendants and any defendants that come through this court
that are represented by counsel-and this gets back to what
Mr. McLin alluded to earlier-the attorneys are calling the
shots in this case. They are trying the case except for
certain areas where the defendant has the exclusive and final
say, such as areas of whether he wants to testify or not and
that sort of thing. The attorneys are in here representing
these clients and will do so to the best of their ability.
They are the ones who have been to law school. They are the
ones that have been through trial many times before, and
they're the ones that are here for a reason, and that
reason is to represent these individuals. And, so you know,
if there's a conflict between the attorney and client
with regard to how to proceed in the case, you all resolve it
as best you can, but ultimately the attorney is trying the
case. And, you know, we don't pull people in off the
sidewalk to try these cases, and the reason we don't is
because of certain things that they need to learn and certain
experiences they need to have professionally before
they're prepared to try these cases. So they're here
for that reason and for that purpose.
. . .
So that gets me to the reason for our being here. Because
of the matters raised by Mr. Carruthers, I have granted the
request of his previous two attorneys and investigator
reluctantly because, in my opinion, they were doing an
outstanding job of representing Mr. Carruthers and his
. . .
Because of the most recent rash of allegations raised by Mr.
Carruthers in his many letters that he's sent me-I assume
he's sent copies of the letters to his counsel and to
others, but I've certainly got them, and they will be
made a part of the record. And because of the types of things
he alleged in those letters and the position that it put his
previous attorneys in, and their very, very strong feelings
about not ...