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Poston v. Settles

United States District Court, M.D. Tennessee, Cookeville Division

May 2, 2019




         Michael 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. No. 1).

         Presently 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).

         The 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 dismissed.

         II. Procedural History

         Petitioner 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).

         Petitioner 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.

         On 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 134).

         On 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.

         On May 21, 2018, [1] 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.

         In his petition, Petitioner asserts seven claims for relief:

1. The trial court erred by denying Petitioner's motion for recusal;
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 the victim;
5. The evidence is legally insufficient to support the conviction;
6. Petitioner's sentence is excessive because the trial court misapplied an enhancement factor; and
7. Trial counsel provided ineffective assistance by failing to:
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 selection;
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 arguments;
k. Include a transcript of jury selection in the record on direct appeal.

(Doc. No. 1 at 5-12).

         III. Summary of the Evidence A. Trial Proceedings

         The 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 exchange occurred:
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 now.
(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 did that?
[J.R.M.] Yes.
The Court: Any other questions?
Mr. Hatch: No, Your Honor.
The Court: You may step down. Any reason why she would be recalled?
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 morning.
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.” ...

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