United States District Court, E.D. Tennessee
S. MATTICE, JR., UNITED STATES DISTRICT JUDGE
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.
SUMMARY OF EVIDENCE & PROCEDURAL HISTORY
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].
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
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].
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
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
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
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
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
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.
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].
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).
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. §
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).
GROUND ONE: INEFFECTIVE ASSISTANCE OF COUNSEL
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
1. Trial counsel's failure to question victim or nurse
practitioner regarding lack of DNA found in victim's
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 ...