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Dinwiddie v. Ford

United States District Court, E.D. Tennessee

November 5, 2019

TAMMY FORD, Warden, Respondent.



         Petitioner Paul Wallace Dinwiddie, a Tennessee inmate proceeding pro se, has filed a federal habeas petition pursuant to 28 U.S.C. § 2254 challenging his Tennessee convictions for two counts of aggravated rape and two counts of aggravated sexual battery and resulting 45-year sentence. Having considered the submissions of the parties, the State-court record, and the law applicable to Dinwiddie's claims, the Court finds that the petition should be denied.


         On October 23, 2006, the victim, a personal trainer and physical therapist assistant, was awakened in the bedroom of her ground-floor apartment to a man's voice and a bath towel over her face [Doc. 18-2 p. 33-39, 63]. The assailant called her by her name and held a knife to her throat before digitally penetrating her vagina, performing oral sex on her, and kissing her breasts [Id. at 40]. The assailant then masturbated and ejaculated onto a corner of the towel that was covering her face [Id.]. After the assault, the assailant turned on the lights, stating that he had dropped his lighter [Id.]. The victim was able to look beneath the towel a little, and she saw a brown-haired, balding white man with a “beer belly” who weighed approximately 190 pounds [Id. at 44, 55, 58]. The victim also noted that he wore denim jeans with a brown belt and had “not small, ” rough hands [Id.]. She otherwise recalled that he “reeked of cigarette smoke” and had a distinctive southern accent [Id. at 46, 60].

         The assailant eventually left, and the victim called the police [Id. at 41]. Law enforcement collected a note from the victim's apartment from an unknown author stating he or she wanted to meet the victim, and some long and short hairs that the victim stated she found on her hand after the attack [Id. at 64-66, 69-70]. A few days later, a hand towel and condom were found near a dumpster at the victim's apartment, and DNA testing of those items showed a male contributor that was not Dinwiddie [Doc. 18-4 p. 9, 15, 28, 32, 51]. DNA collected from the victim's breasts did, however, match Dinwiddie [Id. at 47-48]. Dinwiddie was arrested inside his home, where officers found ashtrays, lighters, and a pack of cigarettes [Id. at 68, 88].

         Following a jury trial, Dinwiddie was convicted of two counts of aggravated rape and two counts of aggravated sexual battery [See, e.g., Doc. 18-1 p. 107-110]. At sentencing, the trial court determined that Dinwiddie had a significant criminal history that included incidents where he stalked women and sentenced Dinwiddie to an effective 45 years in prison [Doc. 18-3 p. 43-50].

         Dinwiddie appealed, and on July 23, 2010, the Tennessee Court of Criminal Appeals (“TCCA”) affirmed the trial court's judgment and sentence but remanded the case to the trial court for merger of the two aggravated sexual battery jury verdicts into one judgment, and the two aggravated rape verdicts into one judgment. State v. Dinwiddie, No. E2009-01752-CCA-R3-CD, 2010 WL 2889098, at *1-8 (Tenn. Crim. App. July 23, 2010) perm. app. denied (Tenn. Oct. 15, 2010) (“Dinwiddie I”). On October 15, 2010, the Tennessee Supreme Court denied Dinwiddie's application for permission to appeal. Id.

         On April 26, 2011, Dinwiddie filed a petition for post-conviction relief that was later amended by counsel, who incorporated Dinwiddie's claims into the amendment [Doc. 18-13 p. 5- 31, 39-44]. Following an evidentiary hearing, the post-conviction court denied relief [Id. at 84-87]. Aggrieved, Dinwiddie appealed, and the TCCA summarized the issues and evidence presented at the evidentiary hearing as follows:

At the post-conviction hearing, only the Petitioner testified. He explained that he had been represented by appointed counsel (“Trial Counsel”) and that they met approximately six times. Their meetings lasted about thirty minutes each. He explained to Trial Counsel that he had not committed the crimes against the victim, that she had been an escort, and that she had come to his room at the InTown Suites Apartments on Kingston Pike. Trial Counsel advised him against testifying because of his criminal record.
At trial, the victim did not identify him as her assailant, and there were no other eyewitness identifications. His defense to the DNA match, he testified, was “[t]hat when she came to my hotel, I paid her for sex. And I did suck her breast at that time.” This transaction occurred at about 11:00 p.m., before the victim was raped at her apartment.
The Petitioner testified that Trial Counsel failed to challenge “properly” the State's evidence. Specifically, Trial Counsel did not have admitted into evidence a cast of a footprint found outside the victim's apartment window so that Trial Counsel could demonstrate that the cast did not match the pair of boots recovered from the Petitioner; Trial Counsel did not call sufficient witnesses to testify that the Petitioner did not smoke but that others smoked at his residence; Trial Counsel did not have cigarette butts tested for DNA to demonstrate that the Petitioner's DNA was not on them; Trial Counsel did not call sufficient witnesses to testify that the Petitioner had “no hair”; and Trial Counsel did not adduce proof that the handwriting and e-mail address contained in the note found on the victim's door were not the Petitioner's. Trial Counsel also failed to establish the victim's profession as an escort.
On cross-examination, the Petitioner acknowledged that his sister had testified at trial that the Petitioner had been living with her at the time of the crimes and that the Petitioner could not have committed the crimes because she would have heard him if he had left her house. The Petitioner explained that his sister was incorrect about his location at the relevant time but acknowledged that she had provided him with an alibi during her testimony at the trial. His sister also testified that he did not smoke.
He did not recall stating during his interview with the police that he did not know the victim. He maintained that he contacted the victim as an escort, that she came to his room, and that she performed consensual oral sex, only. He recalled that there had been photographs of him introduced at trial that showed him with hair. He asserted that these photographs were “several years old” and that the hair in the photographs was blonde, not brown.
After hearing this proof, the post-conviction court denied relief, concluding that “the gravamen of petitioner's allegations are addressed to the sufficiency of the evidence and he does not specifically point out how his counsel was ineffective.” The Petitioner argues to this Court that the post-conviction court should have granted him relief.

Dinwiddie v. State, E2013-01472-CCA-R3-PC, 2014 WL 869571, at *2-3 (Tenn. Crim. App. March 4, 2014), perm. app. denied (Tenn. July 14, 2014) (“Dinwiddie II”). The TCCA affirmed the post-conviction court's decision on March 4, 2014. Id. On July 14, 2014, the Tennessee Supreme Court denied Dinwiddie's application for permission to appeal. Id.

         On or about August 24, 2014, Dinwiddie filed the instant federal habeas petition in the United States District Court for the Western District of Tennessee, raising the following grounds for relief as paraphrased by this Court:

Ground One: Ineffective assistance of counsel
Ground Two: Insufficient evidence
Ground Three: Trial court error
Ground Four: Excessive sentences

[Doc. 1]. Thereafter, Respondent was ordered to respond to the petition and complied by filing an answer on or about August 26, 2016 [Doc. 19]. On April 25, 2017, the petition was transferred to this District [Doc. 15]. Dinwiddie subsequently sought and was granted permission to amend his petition to include additional arguments and/or correct errors [See Docs. 25, 28, 39, 30, 21, 32].


         The 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 of facts in light of the evidence presented. See 28 U.S.C. § 2254(d)(1) & (2); Schriro v. Landrigan, 550 U.S. 465, 473 (2007).

         Federal habeas relief may be granted under the “contrary to” clause where the State court (1) arrives at a conclusion opposite that reached by the Supreme Court on a question of law; or (2) decides a case differently than the Supreme Court on a set of materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the “unreasonable application” clause, a federal court may grant relief where the State court applies the correct legal principle to the facts in an unreasonable manner. See id. at 407-08; Brown v. Payton, 544 U.S. 133, 141 (2005). Whether a decision is “unreasonable” is an objective inquiry; it does not turn on whether the decision is merely incorrect. See Schriro, 550 U.S. at 473 (“The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable a substantially higher threshold.”); Williams, 529 U.S. at 410-11. This standard will allow relief on a federal claim decided on its merits in State court only where the petitioner demonstrates that the State ruling “was so lacking in justification that there was an error understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). When evaluating the evidence presented in State court, a federal habeas court presumes the correctness of the State-court's factual findings unless the petitioner rebuts the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

         The doctrine of procedural default also limits federal habeas review. See O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (holding prisoner's procedural default forfeits his federal habeas claim). A procedural default exists in two circumstances: (1) where the petitioner fails to exhaust all of his available State remedies, and the State court to which he would be required to litigate the matter would now find the claims procedurally barred, and (2) where a State court clearly and expressly bases its dismissal of a claim on a State procedural rule, and that rule provides an independent and adequate basis for the dismissal. See, e.g., Coleman v. Thompson, 501 U.S. 722, 731-32, 735 n.1 (1991). A procedural default may be circumvented, allowing federal habeas review of the claim, only where the prisoner can show cause and actual prejudice for the default, or that a failure to address the merits of the claim would result in a fundamental miscarriage of justice. Id. at 750; see also Wainwright v. Sykes, 433 U.S. 72, 87, 90-91 (1977). “Cause” is established where a petitioner can show some objective external factor impeded defense counsel's ability to comply with the state's procedural rules, or that his trial counsel rendered ineffective assistance. See id. at 753. Additionally, the prejudice demonstrated to overcome the default must be actual, not merely a possibility of prejudice. See Maupin v. Smith, 785 F.2d 135, 139 (6th Cir. 1986) (citations omitted); see also United States v. Frady, 456 U.S. 152, 170 (1982) (holding prejudice showing requires petitioner to bear “the burden of showing, not merely that errors [in the proceeding] created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with error of constitutional dimension”) (emphasis in original). A fundamental miscarriage of justice of occurs “where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986).


         In his first ground for federal habeas relief, Dinwiddie alleges the ineffective assistance of trial, appellate, and post-conviction counsel [See Doc. 1 p. 15-21; Doc. 22; Doc. 29]. As paraphrased by the Court, Dinwiddie alleges he received the ineffective assistance of counsel due to the following:

1. Trial counsel's failure to question victim or nurse practitioner regarding lack of DNA found in victim's vaginal area.
2a. Trial counsel's failure to prepare Dinwiddie's sister to testify.
2b. Trial counsel's failure to call witnesses who would have testified Dinwiddie was bald.
3. Trial counsel's failure to object to the introduction of the knife from ...

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