United States District Court, E.D. Tennessee, Chattanooga
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE
Scott Clevenger, a Tennessee inmate proceeding pro
se, has filed a federal habeas petition pursuant to 28
U.S.C. § 2254 challenging his Tennessee convictions and
sentences for rape of a child, aggravated sexual battery, and
incest. Having considered the submissions of the parties, the
State-court record, and the law applicable to Clevenger's
claims, the Court finds that the petition should be denied.
SUMMARY OF EVIDENCE & PROCEDURAL HISTORY
Tennessee Court of Criminal Appeals (“TCCA”)
summarized the facts of this case as follows:
The victim, K.G., is the stepdaughter of the Appellant
[Clevenger], and the victim, S.C., is the Appellant's
daughter. On February 25, 2006, seventeen-year-old K.G.
confided in her sister S.C., who was fifteen, that the
Appellant had reinitiated sexual contact with her after
believing that the ongoing molestation had ended. The
following day, the victims reported the incident to the
Grainger County Sheriff's Department and informed
officers that the Appellant had been sexually abusing both of
them over a period of years. After the two victims were
interviewed by Department of Children's Services
(“DCS”) investigators, the Appellant was
interviewed by Officer Maness of the sheriff's
department. Maness orally advised the Appellant of his
rights, including the right to remain silent and the right to
an attorney, before questioning the Appellant. Although the
Appellant initially denied any wrongdoing, he eventually gave
four written statements during the course of the interview,
admitting sexual penetration and contact with both victims.
According to Maness, the Appellant was, prior to the giving
of each of the four statements, read his rights. Each
statement was signed by the Appellant and included a separate
signed acknowledgment, also signed by the Appellant, waiving
his Fifth Amendment rights. The four signed statements by the
Appellant, with accompanying signed waiver of rights forms,
were introduced as exhibits at the hearing.
Following his indictment on August 15, 2006, by a Grainger
County grand jury for one count of aggravated sexual battery
involving the victim K.G., one count of rape of a child
involving the victim S.C., and two counts of incest, one of
K.G. and one of S.C., the Appellant filed a motion to
suppress his statements to Officer Maness. A hearing on the
motion was held on December 6, 2006, immediately prior to
commencement of the trial. At the hearing, the Appellant
testified that he did not recall being informed of his
Miranda rights. He acknowledged that he
“signed some papers after the questioning, ” but
he claimed that he did not recall what the papers were.
Moreover, he insisted that he signed the papers after he had
given his statements to police. However, Officer Maness
testified that he informed the Appellant of his rights
“each time before he gave [the four] statements.”
Additionally, he stated that he had specifically asked the
Appellant each time if he understood his rights and, further,
reminded the Appellant of his rights following each break
that was taken during the questioning.
Tape recordings of the interview with the Appellant were
admitted into evidence at the hearing as well. No. indication
of Miranda warnings was audible on the tape, with
the only mention of the rights being “at the beginning
of one ... tape, [the Appellant] was advised that he had been
read his rights.” When asked why the warning as given
did not appear on the tapes, Maness stated that he did not
know “whether [the rights portion of the interview]
were taped or not.” The trial court, after hearing the
testimony presented, accredited the testimony of Officer
Maness and denied the Appellant's motion to suppress,
finding that the Appellant had knowingly and voluntarily
waived his constitutional rights as provided by
At trial, SC testified that she had been sexually molested
and raped by the Appellant and that the incidents had beg[u]n
when she was six years old. The first incident involved her
father forcing her and her stepsister, K.G., to
“perform oral sex on him, and he was touching us in
places like down below...[.]” She also testified
regarding a 2002 incident, when she was twelve years old,
during which the Appellant took her into his bedroom,
“and he penetrated me that night ... and he performed
oral sex [on her] ... [and] made her” perform oral sex
on him. S.C. also testified to a specific incident occurring
in 2004, during which the Appellant had her “on the
couch and he was trying to do things with [her]. Once again
it was oral, and then he tried to stick his penis in [her]
vagina and it hurt ... and he quit.”
K.G. also testified at trial that she had been sexually
molested and raped by the Appellant, stating the abuse began
when she was nine years old with an incident involving both
her and S.C. during which the Appellant fondled her, touched
her, and made her perform oral sex on the Appellant. She
stated that the abuse continued until 2006, with the final
incident occurring on February 25. According to K.G., she was
lying on a futon with her eyes closed. She assumed the
Appellant thought her to be asleep. According to K.G., the
Appellant was “sticking his fingers in me and
everything, and then oral sex again.”
At trial, Officer Maness read the Appellant's four
statements into the record. The Appellant testified and
denied that any of the incidents had occurred. He testified
that he only gave the statements to police after he was
questioned for four and a half hours and that he signed the
statements because he “was scared mostly ... and
didn't want to see my girls hurt or go through any pain
or suffering.” According to the Appellant, he informed
the officers that he had problems with his memory due to
heavy drug usage, and they gave him “hints” and
convinced him that the incidents had occurred.
State v. Clevenger, No. E2007-00298-CCA-R3-CD, 2008
WL 588862, at *1-2 (Tenn. Crim. App. Mar. 5, 2008)
(“Clevenger I”) (footnotes omitted).
was ultimately convicted by a Grainger County jury of one
count of aggravated sexual battery, one count of rape of a
child, and two counts of incest. Id. at *1. He was
sentenced to consecutive sentences of 9 years for aggravated
sexual battery, 25 years for rape of a child, and 6 years for
one count of incest and 10 years for the second count,
resulting in a total sentence of 50 years. Id.
direct appeal, Clevenger argued only that his statements
should have been suppressed due to an alleged
Miranda violation. Id. at *1. The TCCA
deemed the issue waived because Clevenger failed to present
the issue in a motion for a new trial. Id. at *3. In
the alternative, the TCCA upheld the trial court's
determination that Clevenger knowingly and voluntarily waived
his Miranda rights. Id. at *4.
October 16, 2008, Clevenger filed a pro se petition for
post-conviction relief [Doc. 28-18 p. 4-22]. Counsel was
subsequently appointed, and counsel filed an amendment to the
petition alleging that Clevenger's statements should have
been suppressed [Id. at 32-33, 41]. On June 18,
2009, the State filed an answer to the petition stating that
Clevenger was entitled to file a motion for a new trial
[Id. at 45]. On July 14, 2009, Clevenger filed a
motion for a new trial alleging, once again, that his
statements should have been suppressed. [Id. at
47-49]. On December 7, 2009, the trial court denied the
motion for a new trial and granted a delayed appeal [Doc.
28-10 p. 50-51]. On May 2, 2011, the TCCA determined that the
Miranda issue had been previously determined in the
original direct appeal and denied the delayed appeal.
State v. Clevenger, No. E2010-00077-CCA-R3-CD, 2011
WL 1660580, at *3-4 (Tenn. Crim. App. May 2, 2011); perm.
app. denied (Tenn. Jul. 15, 2011) (“Clevenger
II”). The Tennessee Supreme Court
(“TSC”) denied Clevenger's application for
discretionary review on July 15, 2011 [Doc. 28-17].
April 22, 2013, following the delayed appeal, the State
post-conviction court held an evidentiary hearing on
Clevenger's post-conviction claims [Doc. 28-23].
Post-conviction relief was denied following the hearing [Doc.
28-18 p. 62-64]. The TCCA affirmed the denial of
post-conviction relief on July 29, 2014. Clevenger v.
State, E2013-01786-CCA-R3-PC, 2014 WL 3744274 (Tenn.
Crim. App. Jul. 29, 2014); perm. app. denied (Tenn.
Nov. 21, 2014) ...