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Clevenger v. Qualls

United States District Court, E.D. Tennessee, Chattanooga

November 4, 2019

SCOTT CLEVENGER, Petitioner,
v.
ERIC QUALLS, Warden, Respondent.

          MEMORANDUM OPINION

          HARRY S. MATTICE, JR. UNITED STATES DISTRICT JUDGE

         Petitioner 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.

         I. SUMMARY OF EVIDENCE & PROCEDURAL HISTORY

         The 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 Miranda.
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).

         Clevenger 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.

         On direct appeal, Clevenger argued only that his statements should have been suppressed due to an alleged Miranda[1] 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.

         On 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].

         On 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) ...


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