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Whaley v. Gross

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

November 5, 2019

DORIS A. WHALEY, Petitioner,
v.
GLORIA GROSS, Warden, Respondent.

          MEMORANDUM OPINION

          HARRY S. MATTICE, JR. UNITED STATES DISTRICT JUDGE

         Petitioner Doris A. Whaley, a Tennessee inmate proceeding pro se, has filed a federal habeas petition pursuant to 28 U.S.C. § 2254 challenging her Tennessee judgment of conviction for first-degree murder and resulting life sentence. Having considered the submissions of the parties, the State-court record, and the law applicable to Whaley's claims, the Court finds that the petition should be denied.

         I. SUMMARY OF EVIDENCE & PROCEDURAL HISTORY

         Charles Campbell was stabbed to death on August 28, 2006, and Doris A. Whaley was charged with his murder. State v. Whaley, No. E2010-00389-CCA-R3-CD, 2011 WL 2519762, at *1, 3 (Tenn. Crim. App. June 23, 2011) perm. app. denied (Tenn. Oct. 18, 2011) (“Whaley I”). At Whaley's trial, the State presented evidence that Whaley gave several conflicting accounts of what happened the night of the murder, that she had threatened the victim just prior to his murder, that Whaley told Campbell she would kill him if he did not return her cell phone, and that she was enraged and “tearing the house apart” when she counted to five and then told Campbell, “[y]ou're dead.” Id. at *6, 12. Whaley's son testified that upon arriving at Whaley's home, he witnessed her “scrunched down and leaned over” with a weapon that “looked like a knife” while Campbell lay dying on the floor. Id. at *5, 12.

         A Washington County jury convicted Whaley on one count of first-degree premeditated murder, and the trial court sentenced Whaley to life imprisonment. Id. at *11. The Tennessee Court of Criminal Appeals (“TCCA”) affirmed the conviction on direct appeal, and the Tennessee Supreme Court denied discretionary review. Id. at *1.

         Thereafter, Whaley filed a pro se petition for post-conviction relief in the trial court [Doc. 9-18 p. 8-11]. The trial court appointed post-conviction counsel, who filed an amended petition for post-conviction relief alleging several claims of ineffective assistance of trial counsel [Id. at 44-52]. Specifically, post-conviction counsel asserted that trial counsel was ineffective for failing to “present at trial any evidence or testimony regarding Petitioner's medical history;” for failing to “properly prepare, communicate with, and subpoena medical health experts” concerning Petitioner's hand surgeries; for failing to move for a continuance “to investigate the circumstances surrounding the State's obtaining a partially recorded phone conversation between the Petitioner and Betsy Doran;” for failing to “fully investigate and obtain expert testimony that would have contradicted the State's expert witness' testimony regarding “blood spatter” evidence;” and for failing to “assert any of the foregoing grounds for relief” on appeal [Id. at 45-49]. Post-conviction counsel also claimed that evidence obtained after Whaley's trial that Whaley's son had committed perjury would, if introduced at a new trial, likely produce a different verdict [Id. at 49-50].

         An evidentiary hearing was held on Whaley's post-conviction claims. At the hearing, post-conviction counsel chose not to build a record as to the perjury-related claim after the trial court preliminarily concluded that such a statement would be hearsay [See id. at 15-20; see also Doc. 9-18 p. 94]. However, extensive evidence was offered regarding Whaley's ineffective assistance of counsel claims. Whaley's Social Security Disability records were introduced at the hearing and demonstrated that she had been declared disabled prior to the murder based, in part, on “bilateral carpal tunnel syndrome” [See, e.g., Doc. 9-19 p. 25-28, 115]. Trial counsel testified that he had obtained Whaley's medical records and was aware of her history of osteoarthritis and Carpal Tunnel Syndrome [Doc. 9-18 p. 45; Doc. 9-19 p. 25-27, 29]. He testified that he consulted with the pathologist performing the victim's autopsy regarding whether Whaley's hand conditions would render her unable to commit the murder [Doc. 9-19 p. 38]. Counsel stated the doctor advised him that “it wouldn't take much to hold onto a knife” [Id.]. Counsel also testified that “if a doctor said somebody with two carpal tunnel surgeries couldn't hold a knife period then I would have pursued it, but nobody said that” [Id. at 40]. Finally, trial counsel expressed his doubts regarding the extent of Whaley's hand difficulties, stating that he saw her daily carrying drinks and driving herself to his office, and that he did not see “anything from the autopsy that would make [him] want to think there's no way she could have” stabbed the victim [Id. at 39].

         Other witnesses also testified, including Whaley, who acknowledged that that she could drive short distances, hold a soda can, and eat with a fork [Id. at 108]. Witness Tracy Harris testified that she had been friends with Whaley for 25 years and stated that while Whaley complained of arthritis in her hands if she performed routine activities for too long, she could shower herself, dress herself, feed herself, and that she did not complain of pain when she ate or drank [Id. at 96-104]. Whaley's daughter confirmed that Whaley could feed and dress herself, brush her hair, and use a cell phone [Id. at 125-32].

         Following the evidentiary hearing, the post-conviction trial court produced a written order failing to credit Whaley's testimony that she was physically incapable of committing the murder, noting, in part, that Whaley did not “say anything” about her medical conditions in her pro se petition for post-conviction relief, nor did she inform investigating officers of her disability in the nine different accounts of the murder she gave to law enforcement [Doc. 9-18 p. 100-102, 107]. The Court denied post-conviction relief, finding trial counsel performed a reasonable investigation and did not render ineffective assistance [Id. at 72-109]. The TCCA affirmed the denial, and the Tennessee Supreme Court denied discretionary review [Doc. 9-24; Doc. 9-27]. See Whaley v. State, No. E2014-02378-CCA-R3-PC, 2016 WL 2901997, at *2 (Tenn. Crim. App. May 13, 2016) perm. app. denied (Tenn. Sept. 23, 2016) (“Whaley II”).

         On or about September 11, 2017, Whaley filed the instant petition for federal habeas relief, raising the following claims, as paraphrased by the Court:

         Claim 1: Ineffective assistance of counsel due to counsel's failure to:

1. Present evidence of Whaley's medical history of osteoarthritis and “carpal tunnel issues;”
2. “[P]repare, communicate with, and subpoena medical health experts who would have provided testimony about Petitioner's medical condition(s) and the surgeries to her hands;”
3. “[M]ove the Court for a continuance” to investigate the “circumstances surrounding the State's obtaining a partially recorded phone conversation ...

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