United States District Court, E.D. Tennessee
Russell Dean Long, a Tennessee inmate proceeding pro
se, has filed a federal habeas petition pursuant to 28
U.S.C. § 2254 challenging the legality of his
confinement under State-court judgments of conviction for two
counts of first-degree felony murder, for which he received
an effective lifetime sentence. Having considered the
submissions of the parties, the State-court record, and the
law applicable to Long's claims, the Court finds that the
petition should be denied.
BACKGROUND & PROCEDURAL HISTORY
March 6, 2009, Long's two-month-old daughter died from
blunt force trauma [See, e.g., Doc. 13-1 p. 5]. On
May 5, 2009, Long was indicted by the Washington County Grand
Jury with two counts of first-degree felony murder, with the
underlying felonies being aggravated child abuse and
aggravated child neglect [Id. at 13]. Following a jury
trial, Long was convicted as charged and was sentenced to
serve a life term for each count in the Tennessee Department
of Corrections [Doc. 13-1 p. 148, 151, 154-55]. Subsequently,
the trial court merged Long's convictions and denied his
motion for a new trial [Doc. 13-1 p. 155, 162]. On direct
appeal, the Tennessee Court of Criminal Appeals
(“TCCA”) affirmed the trial court's
judgments. State v. Long, No. E2012-01166-CCA-R3-CD,
2013 WL 5436529, at *1 (Tenn. Crim. App. Sept. 27, 2013),
perm. app. denied (Tenn. March 5, 2014). On March 5,
2014, the Tennessee Supreme Court denied Long's
application for permission to appeal [Doc. 13-17].
18, 2014, Long filed a pro se petition for post-conviction
relief, raising six claims of ineffective assistance of
counsel [Doc. 13-18 p. 9]. On June 23, 2014, Long filed an
amended petition for post-conviction relief with the
assistance of appointed counsel, alleging one additional
ground for relief and incorporating the claims raised in the
original petition [Doc. 13-18 p. 29-31]. At the evidentiary
hearing held on the petition, post-conviction counsel
announced that Long was withdrawing all six of the claims
raised in his original pro se petition and proceeding instead
with the sole claim raised in the amended petition, which
alleged that trial counsel erred in not playing the 911 tape
for the jury [Doc. 13-19 p. 7-20]. Accordingly, the
post-conviction court considered the original six claims
abandoned and denied relief on the remaining claim through a
written order [See id.; see also Doc. 13-18
p. 50]. The TCCA affirmed the decision of the post-conviction
court. Long v. State, No. E2015-01903-CCA-R3-PC,
2016 WL 3130952 (Tenn. Crim. App. May 26, 2016), perm.
app. denied (Tenn. Aug. 18, 2016). On August 18, 2016,
the Tennessee Supreme Court denied the petitioner's
application for permission to appeal [Doc. 13-27].
about March 27, 2017, Long filed the instant federal habeas
petition raising the following claims, as
paraphrased by the Court:
Claim 1: Counsel rendered ineffective assistance in failing
to challenge Long's exposure to double jeopardy, as he
was convicted on two counts of felony murder for a crime that
occurred against a single victim [Doc. 1 p. 5].
Claim 2: Counsel rendered ineffective assistance in
misleading Long into believing he should not testify in his
own defense, in violation of Momon v. State of
Tennessee, 18 S.W.3d 152 (Tenn. 2000) [Doc. 1 p. 7].
Claim 3: Counsel rendered ineffective assistance in failing
to move for a change of venue due to pre-trial publicity in
the case [Doc. 1 p.8].
Claim 4: Counsel rendered ineffective assistance in failing
to object to gender imbalance in the jury panel, as the
presence of nine females and only three males virtually
ensured he would be convicted of the charges against him
[Doc. 1 p. 9].
Claim 5: Counsel rendered ineffective assistance in failing
to offer any lesser-included offenses even though there were
grounds for them [Doc. 1 p. 10].
Claim 6: Counsel rendered ineffective assistance in failing
to object to Long's illegal and excessive sentence, as a
lesser sentence would have been sufficient [Doc. 1 p. 12].
Court ordered Respondent to respond to the petition, and
Respondent complied by filing an answer on June 13, 2017
[Doc. 15]. Long did not file a reply to the answer, and the
deadline to do so has passed. See E.D. Tenn.
Court's review of the instant petition is governed by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), which prevents the grant of federal
habeas relief on any claim adjudicated on the merits in a
State court unless that adjudication (1) resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established United States Supreme
Court precedent; or (2) resulted in a decision based on an
unreasonable determination ...