United States District Court, W.D. Tennessee, Eastern Division
ORDER DIRECTING CLERK TO MODIFY RESPONDENT, DENYING
§ 2254 PETITION, DENYING CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE
Michael Allen Gibbs, a Tennessee state prisoner, has filed a
pro se habeas corpus petition (the
“Petition”), pursuant to 28 U.S.C. § 2254.
(ECF No. 1.) For the reasons that follow, the Petition is
2009, a Haywood County, Tennessee, grand jury charged Gibbs
and Michael Batchelor with first degree premeditated murder,
first degree felony murder, especially aggravated burglary,
and attempted especially aggravated robbery, involving victim
Daniel Bradford. (ECF No. 16-1 at 5-6.) The defendants were
tried separately. State v. Gibbs, No.
W2012-00800-CCCA-R3-CD, 2013 WL 3324957, at *1 (Tenn. Crim.
App. June 26, 2013), perm. appeal denied (Tenn. Nov.
Gibbs's jury trial, Vickie Miller, the Defendant's
girlfriend at the time of the incident, testified that she
and her friend Angela Sangster were at Miller's house on
the night of August 28, 2009, along with Gibbs and Batchelor.
(ECF No. 16-4 at 49.) “Miller and Sangster announced to
the men that they were leaving to purchase alcohol”
from the victim, who was “a relative of Miller's
who illegally sold liquor out of his home.”
Id. at *1. Both women testified that, after the
victim invited them into his home, “two men entered
with bandanas covering their faces, instructing the two women
to ‘get down' and demanding money and liquor from
the victim.” Id. The women, who at that time
were “crouched beside the bed, ” heard “one
of the men sa[y] that the victim had a gun, and then [they
heard] a gunshot.” Id. Without checking on the
victim, the women left after the men had exited. Id.
They later returned to the victim's home “to check
on [him] and found him dead from a gunshot wound.”
Id. Miller called the police. Id.
Police Department officers who arrived on the scene
discovered that the victim had “a loaded weapon
underneath [him], which had not been fired.”
Id. According to the testimony of law enforcement
officers, “the house was in disarray and liquor bottles
were strewn across the bed.” Id. The medical
examiner testified that the cause of the victim's death
was a gunshot wound to the torso. (ECF No. 16-3 at 86.)
her initial statement to the officers immediately after the
shooting, Miller denied being present during the shooting,
” but upon questioning, “admitted to being in the
room when the shooting occurred.” Id. at *2.
“Although she could not identify either of the two men
from their physical appearance, she claimed to recognize the
Defendant's voice.” Id. Sangster, who
“was interviewed later, ” was not “able to
identify either” of the men who had entered the
victim's home. Id. “The Defendant, knowing
the police considered him the prime suspect in the
victim's murder, turned himself in, ” but
“denied any involvement in the victim's
Wayne Shaw, who had been “incarcerated with the
Defendant while he was awaiting trial, ” testified that
Gibbs confessed to being at “the victim's house to
rob him, ” “us[ing] the women to get
inside.” Id. The defendant also told
“Shaw that when the victim reached ‘for his
pants,' he shot him.” Id. Kristopher
White, who had “also [been] incarcerated with the
Defendant, ” testified “that the Defendant
admitted to shooting the victim during a robbery.”
Id. “The Defendant told White that Miller and
Sangster were suppose to ‘handle it' but were
unable to go through ‘with getting the money,' so
he was ‘called in on the cue' and shot the
victim.” Id. “Also while incarcerated,
the Defendant wrote [a] letter to Miller, ” in which
“he asked for Miller's help at the preliminary
hearing, noting that Miller and Sangster were the only
witnesses against him.” Id.
jury acquitted Gibbs on the first degree murder charge, and
found him guilty of felony murder, especially aggravated
burglary, and attempted especially aggravated robbery. (ECF
No. 16-1 at 117-20.) The trial court imposed a sentence of
life imprisonment with the possibility of parole for the
felony murder conviction, and ten years each on the remaining
convictions. Gibbs, 2013 WL 3324957, at *2.
“The court ordered that the ten-year sentences be
served concurrently with one another, but consecutively to
the life sentence, for a total effective sentence of life
plus ten years.” Id.
direct appeal, the Tennessee Court of Criminal Appeals
(“TCCA”) held that the especially aggravated
burglary conviction was “precluded by statute.”
Id. at *5. The court therefore “modified [the
conviction] to one for aggravated burglary with imposition of
a five-year sentence.” Id. at *1. The
judgments were confirmed in all other respects. Id.
subsequently filed a state pro se post-conviction
petition (ECF No. 16-12 at 18-32), which was later amended by
appointed counsel (id. at 48-55). Following an
evidentiary hearing, the post-conviction trial court denied
relief. (Id. at 59-62.) The TCCA affirmed, and the
Tennessee Supreme Court denied permission to appeal.
Gibbs v. State, No. W2015-01808-CCA-R3-PC, 2016 WL
3640373, at *1 (Tenn. Crim. App. June 30, 2016), perm.
appeal denied (Tenn. Oct. 16, 2016).
August 22, 2016, Gibbs filed his Petition. He asserts that
trial counsel rendered ineffective assistance by failing, at
the plea stage, to explain the proofs necessary to convict
him of felony murder (Claim 1), and that the trial court
erred in failing to give a jury instruction on accomplice
testimony (Claim 2). (ECF No. 1 at 4-8.)
Georgia Crowell, filed the state-court record (ECF No. 16)
and an answer (ECF No. 17) to the Amended Petition. She
argues that the claims are without merit. Petitioner did not
file a reply, although allowed to do so. (See ECF
No. 8 at 2.)
Federal Habeas Review
statutory authority for federal courts to issue habeas corpus
relief for persons in state custody is provided by §
2254, as amended by the Antiterrorisim and Effective Death
Penalty Act (“AEDPA”). See 28 U.S.C.
§ 2254. Under § 2254, habeas relief is available
only if the prisoner is “in custody in violation of the
Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a).
availability of federal habeas relief is further restricted
where the petitioner's claim was “adjudicated on
the merits” in the state courts. 28 U.S.C. §
2254(d). In that circumstance, the federal court may not
grant relief unless the state-court decision
“‘was contrary to' federal law then clearly
established in the holdings of [the Supreme] Court; or that
it ‘involved an unreasonable application of' such
law; or that it ‘was based on an unreasonable
determination of the facts' in light of the ...