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Carruthers v. Mays

United States Court of Appeals, Sixth Circuit

May 3, 2018

Tony Von Carruthers, Petitioner-Appellant,
Tony Mays, Warden, Respondent-Appellee.

          Argued: June 13, 2017

          Appeal 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 Appellant.

          John H. Bledsoe, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

         ON BRIEF:

          Michael J. Passino, Paul R. Bottei, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE MIDDLE DISTRICT OF TENNESSEE, Nashville, Tennessee, for Appellant.

          John H. Bledsoe, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

          Before: COLE, Chief Judge; ROGERS and STRANCH, Circuit Judges.



         Tony 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.


         A 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.


         Carruthers's 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, are:[1]

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 follows:
[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. . . .

         On June 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 follows:

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 interests.
. . .
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 ...

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