United States District Court, E.D. Tennessee, Greeneville
DORIS A. WHALEY, Petitioner,
GLORIA GROSS, Warden, Respondent.
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE
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.
SUMMARY OF EVIDENCE & PROCEDURAL HISTORY
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.
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
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].
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].
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].
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”).
about September 11, 2017, Whaley filed the instant petition
for federal habeas relief, raising the following claims, as
paraphrased by the Court:
1: Ineffective assistance of counsel due to counsel's
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
3. “[M]ove the Court for a continuance” to
investigate the “circumstances surrounding the
State's obtaining a partially recorded phone conversation