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Newton v. Phillips

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

July 1, 2019

JOSEPH NEWTON, Petitioner,
v.
SHAWN PHILLIPS, Warden, Respondent.

          MEMORANDUM

          Aleta A. Trauger United States District Judge

         Pending before the court is Joseph Newton's pro se petition under 28 U.S.C. § 2254 for a writ of habeas corpus challenging his 2012 conviction for two counts of rape. Newton is an inmate at the Northwest Correctional Complex in Tiptonville, Tennessee, where he currently is serving a sentence of eight years' imprisonment in the Tennessee Department of Correction. (Doc. No. 1).

         The respondent has responded to the petition (Doc. No. 16), and the petitioner has replied to the respondent's answer (Doc. No. 22). 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 the petitioner is not entitled to relief. The petition therefore will be denied and this action will be dismissed.

         I. Procedural History

         On September 12, 2012, a Davidson County jury convicted the petitioner of two counts of rape. The trial court imposed an eight-year sentence. (Doc. No. 1 at 1).

         The Tennessee Court of Criminal Appeals affirmed the petitioner's convictions and sentence. State v. Newton, No. M2014-00603-CCA-R3-CD, 2015 WL 1543386 (Tenn. Ct. Crim. App. Apr. 2, 2015), perm. app. denied (Tenn. July 17, 2015). The Tennessee Supreme Court denied the petitioner's application for discretionary review on June 6, 2018. Id. The petitioner did not seek a petition for writ of certiorari from the United States Supreme Court.

         On September 4, 2015, the petitioner filed a timely, pro se petition for post-conviction relief. (Doc. No. 15, Attach. 12 at 23-43). On July 15, 2016, the petitioner filed an amended petition through counsel. (Id. at 55-71) Following an evidentiary hearing, the post-conviction court denied relief on October 4, 2016. (Id. at 75-82). On November 29, 2017, the Tennessee Court of Criminal Appeals affirmed the judgment of the post-conviction court. Newton v. State, No. M2016-02240-CCA-R3-PC, 2017 WL 5901032 (Tenn. Crim. App. Nov. 29, 2017), perm. app. denied (Tenn. Mar. 14, 2018). The Tennessee Supreme Court denied the petitioner's application for discretionary review on March 14, 2018. Id.

         On May 1, 2018, [1] the petitioner filed the instant pro se petition for writ of habeas corpus. (Doc. No. 1 at 16). By order entered on August 10, 2018, the court directed the respondent to file an answer, plead or otherwise respond to the petition in conformance with Habeas Rule 5. (Doc. No. 10). The respondent filed his response on November 21, 2018, conceding that the petition is timely and urging the court to dismiss the petition. (Doc. No. 16 at 2).

         The petitioner asserts seven claims for relief:

         Claim 1: Petitioner was denied effective assistance of counsel when successor counsel[2]failed to call him to testify at the motion for new trial hearing;

         Claim 2: Petitioner was denied effective assistance of counsel when trial and successor counsel failed to interview and call certain witnesses to testify at the trial and the motion for new trial hearing;

         Claim 3: Petitioner was denied effective assistance of counsel at his motion for new trial hearing because successor counsel raised ineffective assistance of counsel claims at the motion for new trial hearing and on direct appeal;

         Claim 4: Petitioner was denied effective assistance of counsel when appellate counsel failed to raise a sufficiency of evidence claim on direct appeal;

         Claim 5: Petitioner was denied effective assistance of counsel when appellate counsel failed to cite legal authority in support of his argument that trial counsel's closing argument was prejudicial;

         Claim 6: Petitioner was denied effective assistance of counsel when appellate counsel failed to raise the issue of sentencing on direct appeal; and

         Claim 7: Petitioner was denied due process of law by the cumulative effect of the errors at trial.

         III. Summary of the Evidence

         A. Trial Proceedings

         The Tennessee Court of Criminal Appeals summarized the proof adduced at the defendant's trial as follows:

The victim testified that on November 17, 2009, she attended a work-related dinner, where she consumed several alcoholic drinks. She subsequently drove her vehicle to several different bars and continued to consume alcohol. The last bar that she visited was Broadway Brewhouse, located at the corner of 19th Avenue and Broadway in Nashville. When the bar closed at 3:00 a.m., several bar employees and the victim mutually agreed that the victim should depart in a taxi.
Douglas Tribble was working as a barback at Broadway Brewhouse and remembered having a conversation with the victim. Mr. Tribble became concerned that the victim may have consumed too much alcohol, and he spoke with his manager about placing her in a taxi. Mr. Tribble explained to the victim that he did not believe it was a good idea for her to operate her vehicle, and the victim agreed. Mr. Tribble exited the bar with the victim to assist her in hailing a cab. He recalled that he flagged down a white Allied taxi that was operated by a black male. He could not see the driver's face in detail because it was dark and the taxi was across the street, but he made a notation that the taxi's number was either “70, 71, or 77.”
Mr. Tribble testified that it was his habit always to note the number of a cab if he placed a person into the cab. He began this practice after an incident that occurred many years earlier with a co-worker. Mr. Tribble placed his co-worker in a cab and learned the next day that the driver had assaulted the co-worker, stolen her money, “and then left her on the side of the road for dead.” After the incident, Mr. Tribble promised himself “that if anytime [he] ever put somebody in a cab, [he] would always remember the number of the cab.”
When the victim entered the taxi, she informed the driver that she wished to go to “Belmont off of 18th Avenue.” The taxi started in that direction, but when the victim asked the driver to turn left on Magnolia, the cab continued straight instead of turning. Initially, the victim believed that the driver had simply missed the turn and would turn around to take her to her destination. However, the driver turned to her and told her to “shut up.”
After continuing to drive, the driver “whipped into a cul-de-sac.” He climbed into the backseat of the taxi and forced himself on the victim. He pulled down the victim's pants and underwear and penetrated her vagina with his penis. The victim did not consent to this action, and she was fearful while it was happening. The victim believed that the assault lasted “maybe 10 minutes or 15 minutes, five minutes” but stated that “[i]t felt like two hours[.]”
The defendant returned to the driver's seat of the taxi after penetrating the victim. The victim immediately exited the taxi, running “as fast as [her] legs would take [her].” She purposefully left the door of the taxi open to slow the driver down, in case he attempted to pursue her. The victim ran into a well-lit area of “an apartment or condo community” and telephoned police.
Officer Paul Goebel of the Metropolitan Nashville Police Department responded to the victim's call. He testified that he arrived at the apartment complex around 4:00 a.m. and that the victim informed him that she had been attacked a short distance from the apartment complex. Officer Goebel noted that the victim appeared to be intoxicated but stated that she was able to articulate what had occurred. He testified that the victim never attempted to conceal the fact that she was intoxicated. The victim told him that a black male between the ages of twenty-seven and thirty-two years old attacked her. After speaking with the victim for a few moments, Officer Goebel transported her to General Hospital, where a nurse practitioner performed a “Medical/Legal Examination” and a rape kit.
Connie Lynn Barrow was the nurse practitioner who was on call for the Sexual Assault/Victim Response Team when the victim came to General Hospital. She testified that as part of her duties, she took the medical forensic health history of the victim, performed a “head to toe physical assessment, ” examined the victim for trauma, and collected any evidence that she “deem[ed] to be appropriate.” Ms. Barrow observed a small, “slightly purple” bruise on the victim's right breast and a “small reddened abrasion” on the victim's right knee. She asked the victim if her assailant had kissed her anywhere, and the victim responded that he may have attempted to kiss her on her breast and mouth. Ms. Barrow administered swabs to the victim's mouth and face in order to detect any potential saliva left by the attacker. She performed a swab of the outside and inside of the victim's vagina to check for semen, along with a cervical swab of her vagina and a swab around her anus. Ms. Barrow also performed a “cervical culture checking” for gonorrhea, and she treated the victim for gonorrhea.
Detective Robert Carrigan, a Metropolitan Nashville police officer, worked in the Sex Crimes Division. He testified that he arrived at the hospital after the victim was transported and that he spoke with her before Ms. Barrow conducted her examination. He observed that the victim “appeared extremely intoxicated” and had trouble remaining awake. Detective Carrigan noted that “[i]t was just a difficult time for an interview.” In this first interview, the victim described her assailant as a black male with medium skin tone. In a subsequent interview several days later, the victim described her attacker as a “[l]ight skinned male black.” The only variation in the two interviews of the description of her attacker was his skin tone. He spoke with her several days later, when she was far more “lucid.”
Detective Carrigan testified that the swabs taken from the victim were sent to the Tennessee Bureau of Investigation (TBI) crime lab for analysis. Semen was discovered on the vaginal and peri-anal swabs, but the DNA profile did not reveal a match with anyone currently in the TBI system. After speaking with the manager on duty at Broadway Brewhouse the evening of the incident and with Mr. Tribble, Detective Carrigan began to develop the drivers of Allied taxi cabs 70, 71, and 77 as potential suspects. The defendant was the driver of cab number 70. Detective Carrigan spoke with all three drivers, and all three agreed to provide a consensual DNA swab. When Detective Carrigan showed the defendant a photograph of the victim, he denied having ever seen, met, picked up, or provided a ride to the victim. He also denied ever having a sexual relationship with anyone inside of his taxi.
Detective Carrigan sent the DNA swabs of the three drivers to the TBI laboratory, and testing revealed a positive match between the semen found in the swabs taken from the victim and the defendant's DNA profile. Several days after learning of this match, Detective Carrigan showed the victim a photograph lineup that included a photograph of the defendant. He had shown the victim several prior lineups of Allied taxi cab drivers, but the victim did not select any of the men in the photographs as her attacker. After viewing the lineup with the defendant's photograph, the victim selected that photograph, stating that she was “70% sure” that it was a photograph of her attacker. She clarified that seventy percent sure meant “that [she] was pretty darn sure.”
Special Agent Bradley Everett worked for the TBI Crime Laboratory as a special agent forensic scientist and DNA technical leader for the TBI. After receiving the defendant's DNA swab, Special Agent Everett found that the defendant's DNA profile matched that of the sperm found in the swabs taken from the victim. He testified that the probability of an individual other than the defendant having that DNA profile was greater than the world population. He further opined that “it would be scientifically unreasonable to assume” that the DNA profile did not come from the defendant.
The defense did not put on any proof. Although trial counsel informed the jury in his opening statement that the defendant would testify, the defendant did not do so. Trial counsel began his closing argument by stating that he “would submit that in the absence of DNA in this case, this case would be a loser.” He further told the jury, “I told you in opening statements that [the defendant] was going to testify. Typically in law school they tell you not to tell the jury what they can expect to hear, but this was a [tactical] decision so if you're going to blame anybody blame me, just don't hold it against [the defendant.]” Trial counsel also stated, “This is an identity case. There was a rape and there was no consent, that is not even an issue. There was a rape but the issue is identity.”
At the conclusion of the proof, the jury found the defendant guilty of two counts of rape. The trial court merged both counts and sentenced the defendant to an eight-year sentence.

State v. Newton, 2015 WL 1543386, at **1-3.

         The petitioner then filed a motion seeking a new trial. The Tennessee Court of Criminal Appeals recalled the testimony presented at the new trial hearing as follows:

At the motion for new trial hearing, the defendant raised only the issue of ineffective assistance of counsel, and trial counsel testified.
Trial counsel testified that, prior to trial, he was aware that the State had DNA evidence identifying the defendant as the perpetrator of the rape of the victim. He stated that he hired an expert to attempt to refute the testimony of the State's DNA expert and that his expert was unable to provide an opinion that would refute that of the State. He said that he had several discussions prior to trial about whether the defendant would testify at trial. Trial counsel informed the defendant that if he testified at trial, a consent defense would be the only plausible defense to the charge, in light of the State's DNA evidence. Trial counsel believed that if the defendant were to testify that he did not commit the crime, the testimony would have been unhelpful because it would have been inconsistent with the State's DNA findings.
Trial counsel met with the defendant “in person at least eight times” and spoke with him numerous times on the telephone. Trial counsel testified that the “defense shifted weekly from not there, to it was consensual, to even she attacked him.” A week before the trial, after speaking with the defendant, trial counsel had established that their trial strategy would be to assert a defense of consent. Trial counsel prepared a potential cross-examination of the victim to use when employing the consent defense. However, on the day of trial, the defense “shifted to I didn't do it again.” The defendant wanted trial counsel to argue that he was not at the scene of the crime, despite the DNA evidence, and he informed trial counsel that he wished to testify.
When trial counsel told the jury that the defendant would testify, he did so after the defendant informed him that he would testify. Trial counsel anticipated that the defendant would testify that he was not present at the scene of the crime and did not rape the victim. He agreed that such testimony would be inconsistent with the scientific proof offered in the case. Trial counsel stated that he attempted to maintain a defense that was consistent with his client's desires but that “every case [was] different.” Trial counsel said that on the day of the trial, the defendant “insisted that he did not do it, and-but he still wanted to testify[.]” As a result, trial counsel's strategy was to abandon the consent defense and adopt the theory that the defendant was not the person who raped the victim.
Trial counsel testified that he informed the defendant of his belief that the strategy of claiming that he did not rape the victim “was not the best strategy to pursue[.]” The defendant disagreed, and trial counsel continued with the defense of mistaken identity because the defendant would not adopt a defense of consent.
Trial counsel testified that his biggest obstacle as counsel was “getting [the defendant] to agree on any defense consistently[.]” He stated that the defendant decided not to take the stand after hearing the State's proof and that trial counsel believed this was a smart decision. Trial counsel agreed that if the defendant testified that the encounter was consensual, it would have been inconsistent with the statement that he gave to Detective Carrigan. He further agreed that the proof showed that the defendant did not take the victim where she wished to go and that she jumped out of the taxi cab in a deserted area. He confirmed that the victim's behavior was not consistent with the behavior of a person who had engaged in ...

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