United States District Court, M.D. Tennessee, Cookeville Division
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
Lynn Poston, an inmate of the Bledsoe County Correctional
Complex in Pikeville, Tennessee, filed a pro se petition for
a writ of habeas corpus under 28 U.S.C. § 2254
challenging his 2012 conviction in the White County Criminal
Court for one count of aggravated sexual battery. Petitioner
is serving a term of imprisonment of eleven years in the
Tennessee Department of Correction for this offense. (Doc.
pending before the Court is the Respondent's opposition
to the habeas petition in which he asks the Court to dismiss
the petition. (Doc. No. 17).
petition is ripe for review, and this Court has jurisdiction
pursuant to 28 U.S.C. § 2241(d). Having fully considered
the record, the Court finds that an evidentiary hearing is
not needed, and Petitioner is not entitled to relief. The
petition therefore will be denied and this action will be
was indicted by a White County grand jury of one count of
aggravated sexual battery against his step-granddaughter.
(Doc. No. 16, Attach. 1 at 63-64). Prior to trial, Petitioner
filed a motion for change of venue, which was based on the
victim's father being an employee of the trial court
clerk's office. State v. Poston, No.
M2012-02321-CCA-R3-CD, 2014 WL 309648, at *1 (Tenn. Crim.
App. Jan. 28, 2014), perm. app. denied (Tenn. June
20, 2014). The trial court conducted a hearing and found that
Petitioner had failed to show that he could not receive a
fair trial in White County. Id. However, the trial
court agreed to leave the matter open until jury selection
was complete. Id. After a jury was successfully
seated, the trial court conducted a jury trial in January of
2012. (Doc. No. 16, Attach. 3 at 2). The jury convicted
Petitioner as charged and, after a sentencing hearing, the
trial court imposed a sentence of confinement of eleven
years. (Doc. No. 16, Attach. 4 at 77).
appealed, and Tennessee Court of Criminal Appeals affirmed
his conviction and sentence. State v. Poston, 2014
WL 309648, at *1. The Tennessee Supreme Court declined
discretionary review. Id.
October 6, 2014, Petitioner filed a pro se petition for
post-conviction relief in state court. (Doc. No. 16, Attach.
15 at 35). Appointed counsel later filed an amended petition.
(Id. at 78). After an evidentiary hearing, the
post-conviction court denied the petition. (Id. at
appeal, the Tennessee Court of Criminal Appeals affirmed the
denial of the post-conviction petition. Poston v.
State, No. M2016-01693-CCA R3-PC, 2017 WL 4221147, at
*7-8 (Tenn. Crim. App. Sept. 22, 2017), perm. appeal
denied (Tenn. Sept. 22, 2017). The Tennessee Supreme
Court again declined discretionary review. Id.
21, 2018,  Petitioner filed a petition for writ of
habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1 at
17). By Order entered on July 20, 2018, the Court ordered
Respondent to file an answer, plead or otherwise respond to
the petition. (Doc. No. 6). Respondent filed a response to
the habeas petition on October 18, 2018, in which he concedes
that the petition is timely and asks the Court to dismiss the
petition. (Doc. No. 17). After receiving two letters from
Petitioner, the Court granted Petitioner an extended period
of time to reply to Respondent's response. (Doc. No. 20).
Petitioner did not file a reply.
petition, Petitioner asserts seven claims for relief:
1. The trial court erred by denying Petitioner's motion
2. The trial court erred by denying Petitioner's motion
for change of venue;
3. The trial court erred by failing to administer the oath to
the victim before she testified at trial;
4. The trial court erred by admitting hearsay statements of
5. The evidence is legally insufficient to support the
6. Petitioner's sentence is excessive because the trial
court misapplied an enhancement factor; and
7. Trial counsel provided ineffective assistance by failing
a. Sufficiently meet with Petitioner to fully advise him of
his options and available defenses;
b. Investigate and call favorable defense witnesses at trial;
c. Adequately interview any of the State's witnesses or
conduct a pretrial investigation;
d. File a motion for recusal of the trial judge;
e. Renew a motion for change of venue following jury
f. Object to the unsworn testimony of the victim;
g. Object to ex parte communication between the trial judge
and the jury;
h. Advise Petitioner of a plea offer from the State;
i. Introduce exculpatory medical records of the victim;
j. Thoroughly cross-examine Petitioner's wife about their
k. Include a transcript of jury selection in the record on
(Doc. No. 1 at 5-12).
Summary of the Evidence A. Trial Proceedings
Tennessee Court of Criminal Appeals summarized the proof
adduced at Petitioner's jury trial as follows:
The trial court conducted a jury trial in January 2012. The
victim, J.R.M., testified that she was 10 years of age and
that she resided with her parents and her older brother. The
victim testified that, on the evening of October 23, 2010,
she was at home with her brother, her maternal grandmother,
Mrs. Poston, and her stepgrandfather, the defendant. Mrs.
Poston and the defendant were babysitting while the
victim's parents were attending a Halloween party. The
victim, her brother, her grandmother, and the defendant were
all watching television in the living room, and, at some
point, the defendant stood up and walked to the victim's
parents' bedroom. The victim then decided to follow the
defendant. The defendant was in bed, and the victim, who was
wearing pajamas, went to bed as well. The victim fell asleep
and woke up to the feel of the defendant's hands
“[r]ubbing and pressing” on the victim's
“chest, [her] butt, and [her] vagina.” While the
defendant was touching her, the victim was aware that
“[t]he TV was on, I heard a phone, a zipper, and the
bed was shaking.” The victim felt scared, and she got
out of the bed and went into the bathroom. She testified
that, when she reached the bathroom, she was
“crying” and “burning, ” and she
asked her brother to get her grandmother. When her
grandmother entered the bathroom, the victim told her what
had happened. The victim's grandmother then drove the
victim and her brother to pick up the victim's mother.
When they returned to the victim's house, the defendant
was no longer there.
On cross-examination, the victim admitted that she had, at
one time, a very good relationship with the defendant, whom
she called “Pa, ” and that she had considered him
to be her best friend. The victim denied following the
defendant to the master bedroom when he first left the living
room, stating that when she became bored with the movie some
time later, she left the living room and went to the master
bedroom. The defendant was watching television in the master
bedroom, and the victim watched television with him
“for a couple of minutes” before she fell asleep.
The victim admitted that her brother had walked by the
bedroom several times and looked into the room.
Following the victim's testimony, the prosecutor
requested a bench conference, at which point the following
Mr. Hatch: Your Honor, I don't believe [the victim] was
sworn at the beginning of her testimony.
The Court: I failed to swear the witness? We'll do that
(Attorney[s] return to counsel table.)
The Court: [J.R.M.], the attorneys told me something that I
forgot. Very simple. Would you raise your right hand?
(Witness is sworn.)
The Court: And let me ask you, you've just testified and
talked to both of the attorneys and answered their questions.
Did you keep that oath, did you testify truthfully when you
The Court: Any other questions?
Mr. Hatch: No, Your Honor.
The Court: You may step down. Any reason why she would be
Mr. Hatch: No, Your Honor.
The Court: For you, Mr. Harris?
Mr. Harris: No, Your Honor.
J.R.M.'s 12-year-old brother, J.L.M., testified that, on
October 23, 2010, he and the victim were watching a movie at
their house with his grandmother and the defendant while
J.L.M.'s parents were attending a party. J.L.M. stated
that the defendant left the living room at some point and
retired to the master bedroom, and at some point, the victim
left to go to the master bedroom as well. J.L.M. then left
the living room and went to his own bedroom, which was past
his parents' bedroom. When he walked past the master
bedroom, he saw both the victim and the defendant underneath
the covers in the bed. J.L.M. later left his bedroom and
returned to the living room. When he passed the master
bedroom, he again witnessed the victim and the defendant
underneath the covers. While J.L.M. and his grandmother were
sitting in the living room, the victim ran down the hallway
and was crying, which J.L.M. testified was “very
unusual.” J.L.M. stated that the victim ran into the
bathroom and locked the door. J.L.M. attempted to enter the
bathroom, but the victim would not allow him to enter. The
victim told J.L.M. to tell their grandmother to come to the
bathroom. After his grandmother entered the bathroom, J.L.M.
waited in the house “for a while, ” and he then
decided to go outside because the defendant had left the
house and was shooting basketball. J.L.M. then went back
inside the house to check on the victim, who was still in the
bathroom with their grandmother. J.L.M. described the victim
as having “blood shot red” eyes and stated that
“she was still crying and she looked scared.”
J.L.M. testified that his grandmother “was crying also
and she looked awkwardly.”
J.L.M. testified that his grandmother then put both J.L.M.
and the victim in the defendant's truck. He stated that
the defendant attempted to get into the truck with them, but
his grandmother would not allow him to enter the vehicle.
J.L.M.'s grandmother drove the two children to the party
their parents were attending and picked up J.L.M.'s
mother. At that point, J.L.M.'s grandmother told his
mother what had happened to the victim, and his mother
“was sad and crying and mad at the same time.”
The group returned to J.L.M.'s house, but the defendant
was no longer there, and J.L.M. testified that the defendant
did not return to the house that night or the following
On cross-examination, J.L.M. testified that, when the
defendant left the living room to go the master bedroom, the
victim followed soon after. Approximately five minutes later,
J.L.M. walked back to his own bedroom to watch television.
J.L.M. acknowledged that the door to the master bedroom was
always open, and he stated that he walked past the master
bedroom “six or seven times.” J.L.M. testified
that he made eye contact with the defendant when walking
past, but he did not speak to him. J.L.M. agreed that the
television in the master bedroom was on, but he did not know
what the defendant was watching. J.L.M. testified that his
grandmother never walked down the hallway to check on the
defendant or the victim. J.L.M. estimated that the distance
between the living room and the master bedroom was
approximately 50 feet down a hallway. J.L.M. admitted that he
did not see anything that had transpired in the master
bedroom between the defendant and the victim. J.L.M.
testified that the defendant left the house to shoot
basketball and that he followed the defendant outside, where
he stayed for less than five minutes. J.L.M. returned inside
when he heard his grandmother calling for him.
J.L.M. admitted that, when he and the victim got in the
defendant's truck with their grandmother, their
grandmother did not inform the defendant of where they were
going, and he acknowledged that his grandmother was angry
with the defendant. J.L.M. stated that, when the defendant
grabbed the door handle of the vehicle, his grandmother told
the defendant, “[N]o, ” and she backed out of the
driveway. Their grandmother had locked the door to the house,
and J.L.M. admitted that the defendant could not get back
inside. J.L.M. acknowledged that he never witnessed the
defendant's doing anything inappropriate with the victim
or anyone else.
Mrs. Poston, the victim's grandmother and the
defendant's wife, testified that she and the defendant
had been married for 26 years. On the evening of October 23,
Mrs. Poston and the defendant were babysitting Mrs.
Poston's daughter's children, J.L.M. and the victim.
Mrs. Poston and J.L.M. were watching television in the living
room when Mrs. Poston heard the victim “just kind of
sniffing” behind her. The victim then went into the
bathroom, and Mrs. Poston followed her into the bathroom a
short time later when J.L.M. indicated that the victim was
asking for her. When Mrs. Poston entered the bathroom, the
victim was shaken up, crying, and was “visibly
upset.” At that point, the victim told Mrs. Poston that
the defendant “had touched her on her pee pee and
touched her on her boobs.” Mrs. Poston clarified that
the victim referred to her vagina as her “pee
pee.” After helping the victim calm down, Mrs. Poston
took the victim and J.L.M. out of the house, and the three of
them got into the defendant's truck. Mrs. Poston
testified that the defendant asked what was wrong, but Mrs.
Poston did not allow the defendant to enter the vehicle. Mrs.
Poston drove the children to pick up their mother, and the
group returned to the house. Mrs. Poston stated that, when
they returned to the house, the defendant was no longer
there, and she did not see him return to the house that
evening or the following morning.
On cross-examination, Mrs. Poston stated that, during the
course of the evening of October 23, she went to the
bathroom, and she noticed the victim and the defendant on the
bed in the master bedroom watching television; she noticed
that the victim was giggling. Nothing seemed out of the
ordinary at that time. Mrs. Poston acknowledged that, when
she left the victim's home on October 23, she locked the
door and took the defendant's truck. She also admitted
that the defendant's car keys also contained the keys to
the defendant's and Mrs. Poston's house so that the
defendant was unable to access either residence.
Deputy Bobby Farris with the White County Sheriff's
Department testified that he responded to a possible sexual
misconduct call at the victim's residence at
approximately 1:00 a.m. on October 24, 2010. Upon his
arrival, he encountered Mrs. Poston, the victim's mother,
D.M., and the victim, whom he described as “pretty much
hysterical, very upset, crying continuously.” After
interviewing those present, Deputy Farris determined that the
defendant was the suspect in the alleged aggravated sexual
battery, but the defendant was no longer present at the
residence. Deputy Farris conducted a search of the immediate
area around the victim's residence, and he then searched
for the defendant at both his current and former residences,
as well as the residence of a friend of the defendant's.
Deputy Farris's shift ended at 6:30 a.m., and he had been
unable to locate the defendant.
On cross-examination, Deputy Farris admitted that he could
not recall with any certainty whether he had attempted to
contact the defendant on the defendant's cellular
telephone. Deputy Farris stated that he neither knew that the
defendant had been locked out of the house, nor was he aware
that the defendant did not have access to his truck or the
keys to his own house.
Investigator Terry Hembree with the White County District
Attorney General's Office testified that he interviewed
the defendant on October 27, 2010. After signing a waiver of
rights form, the defendant consented to speak with
Investigator Hembree. According to Investigator Hembree, the
defendant claimed to have a “very good
relationship” with the victim. The defendant admitted
to lying on the bed with the victim in the master bedroom of
her residence on the evening of October 23 for
“approximately two hours” while the two of them
watched television. The defendant said that the victim had
fallen asleep “briefly” and that she later left
the bedroom to go into the living room. The defendant did not
mention anything about the victim's crying. The defendant
claimed that, after the victim left the bedroom, he went
outside to “use the bathroom” and play
basketball. While he was outside, the defendant heard the
victim crying but “he was not aware of any
reason” why she would be crying. The defendant stated
that he saw his wife leave with the grandchildren but that
she would not tell him why they were leaving the house. The
defendant initially told Investigator Hembree that he left
the house shortly after his wife left, but he later stated
that he remained at the residence until his wife returned to
the house with the grandchildren. His stated reason for
leaving the house was that “he had gotten into an
argument with [Mrs. Poston] and that he decided he was just
going to walk home.” ...