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Allen v. Westbrooks
United States District Court, M.D. Tennessee, Nashville Division
June 6, 2019
WILLIAM G. ALLEN, Petitioner,
BRUCE WESTBROOKS, Warden, Respondent.
WILLIAM L. CAMPBELL, JR. UNITED STATES DISTRICT JUDGE.
before the Court is Petitioner's Supplemental Brief on
Grand Jury Discrimination Claim (Doc. No. 110);
Respondent's Response brief (Doc. No. 113); and
Petitioner's Reply (Doc. No. 114). For the reasons set
forth herein, Petitioner's grand jury discrimination
claim is DENIED.
previous opinion, now-retired Judge Todd J. Campbell
described the extensive procedural history in this case:
In March, 1968, the Petitioner was indicted for the murders
of two Davidson County police officers, Charles Wayne
Thomasson and Thomas E. Johnson. Allen v. State,
2011 WL 1601587, at *1 (Tenn. Crim. App. April 26, 2011). The
two murder counts were tried separately. Id. In
December, 1968, the Petitioner was tried and convicted of the
first degree murder of Officer Thomasson, and received a
sentence of 99 years. Id. Prior to trial,
Petitioner's trial counsel filed a “plea in
abatement” seeking dismissal of the indictment based on
a challenge, on equal protection and due process grounds, to
the method used to select the grand jurors who indicted him.
Id., at *2. Specifically, the Petitioner argued that
the method used to select grand jurors resulted in a grand
jury consisting of a lower percentage of blacks than were
represented in the population of Davidson County.
Id. The parties stipulated to certain demographic
information regarding the grand jurors and the population of
Davidson County. Id. The trial court denied the plea
in abatement. Id.
The Petitioner raised the claim on appeal, but it was
rejected and the conviction affirmed by the Tennessee Court
of Criminal Appeals. Canady v. State, 3 Tenn. Crim.
App. 337, 461 S.W.2d 53, 64 (Tenn. Crim. App. 1970). The
Tennessee Supreme Court and the United States Supreme Court
denied certiorari. Allen v. State, supra,
The Petitioner filed a petition for habeas corpus in federal
district court, which was dismissed on November 24, 1971 for
failure to present the grand jury discrimination claim to the
state courts. Id. (Docket No. 41-23, at 18-23).
In December, 1971, the Petitioner filed a post-conviction
petition in state court in which he raised the grand jury
discrimination claim. (Docket No. 42-9, at 33). The court
rejected the claim after holding a hearing which included
testimony by Davidson County judges relating to the grand
jury selection process. Allen v. State,
supra, at *2; (Docket No. 42-9, at 32-47). On
February 1, 1973, the Tennessee Court of Criminal Appeals
affirmed the post-conviction court's decision.
Id. The Tennessee Supreme denied certiorari on June
4, 1973. (Docket No. 41-26, at 4).
Subsequently, in 1973, the Petitioner filed a second petition
for writ of habeas corpus in federal district court. (Docket
No. 41-26, at 2-6). On September 24, 1973, the court engaged
in an “independent examination” of the state
court record and determined that although the grand juror
selection method “did produce a statistical imbalance,
in that the number of black grand jurors were substantially
less than the percentage of the black population in Davidson
County, the petitioner failed to establish that such
statistical imbalance resulted from purposeful discrimination
in the selection of the Grand Jury which indicted this
petitioner.” (Docket No. 41-26, at 12). On appeal, the
Sixth Circuit affirmed in an opinion issued on April 30,
1974, concluding that “the finding of the district
court that there was no purposeful discrimination in the
selection of the grand jury which indicted petitioner is
supported by substantial evidence and is, therefore, not
clearly erroneous.” (Docket No. 41-30, at 4-5).
The Petitioner escaped state custody in 1974 and remained at
large until he was recaptured in 1986. Allen v.
State, supra, at *3.1
1 In 1986, a Davidson County grand jury issued a superseding
indictment charging the Petitioner with Officer Johnson's
murder. Allen v. State, supra, at *3, n. 2.
In 1989, the Petitioner was tried and convicted of first
degree murder and sentenced to 78 years of imprisonment to be
served consecutively to the 99-year sentence he received for
Officer Thomasson's murder. Id. The 78-year
sentence was subsequently converted to a life sentence.
On July 22, 1989, the Petitioner filed his second state
post-conviction petition, which was later amended to include
the grand jury discrimination claim. Allen v. State,
supra, at *3; (Docket Nos. 42-1, at 4; 42-11, at
72). By Order entered February 21, 1990, the state trial
court dismissed the second petition without a hearing,
finding that the Petitioner's claims had been
“previously determined” or “waived”
under the applicable state statute governing post-conviction
proceedings. Allen v. State, supra, at *3;
(Docket No. 42-1, at 15-16). The Tennessee Court of Criminal
Appeals affirmed the dismissal. Allen v. State of
Tennessee, 1991 WL 181059 (Tenn. Crim. App. September
17, 1991); (Docket No. 42-4, at 2). On June 1, 1993, the
Tennessee Supreme Court reversed the dismissal, holding that
the State should have been required to file a response and
the record of prior hearings, and that the court should have
appointed counsel and allowed Petitioner to amend his
petition. Allen v. State, 854 S.W.2d 873 (Tenn.
1993); (Docket No. 42-8, at 2).
While the Petitioner's second post-conviction petition
was pending in the state appeals courts, the Sixth Circuit
Court of Appeals issued its decision in Jefferson v.
Morgan, 962 F.2d 1185, 1192 (6th Cir. 1992).
The Sixth Circuit held in Jefferson that the
petitioner in that case had established a prima facie case of
race discrimination in the selection of the grand jury that
indicted him, and that the State had not rebutted the prima
facie case. The court ordered the State to re-indict the
petitioner within 90 days or release him from custody.
Id., at 1192.
In February, 1994, on remand of his second post-conviction
petition, the Petitioner in this case re-filed his petition,
and subsequently, filed three amendments to the petition.
(Docket No. 42-11, at 89, 165, 180, 209). The court held a
“waiver” hearing on May 15, 1995, during which an
issue arose regarding a possible conflict of interest on the
part of Petitioner's counsel. (Docket No. 42-12, at
2-66). The post-conviction court subsequently appointed new
counsel for the Petitioner, and the case was removed from the
active docket subject to reactivation by Petitioner's new
counsel. Allen v. State, 2011 WL 1601587, at *3.
In November, 2001, through yet another attorney, the
Petitioner filed a consolidated petition for post-conviction
relief, which included the grand jury discrimination claim.
Id., at *4; (Docket No. 42-9, at 4).
By an Agreed Order entered on March 29, 2007 (Docket No.
42-10, at 99) in that case, the parties agreed that
“[t]he facts in Jefferson [v. Morgan,
supra] relating to jury composition in Davidson
County are . . . established for purposes of this case”
and that “the Grand Jury which indicted James Thomas
Jefferson also returned the indictment against William G.
Allen, Petitioner.” (Docket No. 42-10, at 99). On April
3, 2007, the court granted the Petitioner's motion to
modify his sentence to one of life imprisonment, which the
State conceded was appropriate, and entered an Amended
Judgment reflecting the change. (Docket Nos. 42-9, at 48,
On November 20, 2007, the court held a hearing during which
Petitioner's trial counsel testified. (Docket No. 42-13).
On April 30, 2008, the court held another hearing, during
which a witness from the original trial testified, and the
parties addressed the merits of the grand jury discrimination
claim. (Docket No. 42-14).
On September 28, 2009, the court entered an order denying
relief on Petitioner's claims with little discussion of
the evidence presented by the Petitioner. (Docket No. 42-9,
at 67-74). The Tennessee Court of Criminal Appeals affirmed
the lower court's judgment, on April 26, 2011, holding
that the grand jury discrimination claim was barred by the
applicable state post-conviction statute because it had been
“previously determined” by the state courts. The
court pointed out that the Petitioner had received a full and
fair hearing on his grand jury discrimination claim twice -
at the plea in abatement proceedings and at the hearing on
his first post-conviction petition. Allen v. State,
2011 WL 1601587, at *5-9; (Docket No. 42-19). The court
rejected the Petitioner's argument that the stipulated
facts of Jefferson v. Morgan ...
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