United States District Court, E.D. Tennessee, Chattanooga
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE.
Malcolm Witherow, a Tennessee inmate proceeding pro se, has
filed a federal habeas petition pursuant to 28 U.S.C. §
2254 challenging the legality of his confinement under a
Hamilton County judgment of conviction for first-degree
premeditated murder. Having considered the submissions of the
parties, the State-court record, and the law applicable to
Petitioner's claims, the Court finds that the petition
should be denied.
SUMMARY OF EVIDENCE & PROCEDURAL HISTORY
and his ex-girlfriend, the victim, were living with Connie
Harrold on October 10, 2008 [Doc. 8-4 p. 12-13]. Also living
there at the time was Tyler Baker, a friend of Ms.
Harrold's son [Id.]. On the morning of October
10, 2008, Petitioner returned to Ms. Harrold's home after
a night of drinking alcohol with a friend and drank coffee
with the other occupants of the home [Doc. 8-4 p. 14, 23-24;
Doc. 8-6 p. 51-54].
point that morning, it began to rain, and the victim went
outside to close the windows of her vehicle [Doc. 8-4 p. 14].
Petitioner then apologized to Ms. Harrold for breaking his
promise to her, which Ms. Harrold later understood to mean
his promise that he would never harm the victim in Ms.
Harrold's home, and he followed the victim outside
[Id.]. Ms. Harrold saw them fighting and heard a
gunshot [Id. at 15]. The victim screamed for help,
and Ms. Harrold saw Petitioner chasing the victim down the
driveway [Id.]. Ms. Harrold yelled for Mr. Baker,
who was taking a shower [Id. at 16]. He also heard
gunshots [Id. at 44-45]. As Ms. Harrold ran toward
the victim, Petitioner walked passed her on his way back
toward the house [Id. at 16, 31]. Ms. Harrold found
the victim on the side of the road and told Mr. Baker to call
911 [Id. at 16]. As Ms. Harrold performed CPR on the
victim, the victim died [Id. at 17].
saying anything to anyone, Petitioner calmly got into his
vehicle and left [Id. at 46]. He stopped for a
sandwich and gas before driving to Moccasin Bend Mental
Health Institute, where he reported shooting the victim and
throwing the gun “in the river” [Id. at
95-96, 97; Doc. 8-6 p. 72-73]. Petitioner requested a mental
health evaluation [Doc. 8-4 p. 96]. Petitioner received an
evaluation but was not admitted to the hospital [Id.
at 100-01]. He was arrested and subsequently indicted for
first-degree murder [Doc. 8-1 p. 4-5]. The trial court
ordered a mental health evaluation to determine his
competency to stand trial and sanity at the time of the crime
[Id. at 11-12].
to Ms. Harrold and Mr. Baker, Petitioner had previously
threatened to harm the victim because her past work as a
confidential informant resulted in drug charges against
Petitioner [Doc. 8-4 p. 19, 42-43]. Petitioner told Mr. Baker
that he would “get away with it” and “do a
year and a half” at “a crazy house”
[Id. at 43-44].
medical examiner determined that the victim had been shot six
or seven times resulting in fourteen different gunshot wounds
[See, e.g., Doc. 8-5 p. 79, 81-85]. The victim was
alive for each shot [See id. at 81].
testified in his own defense at trial. He stated that he
drank a quart of beer on the morning of the shooting [Doc.
8-6 p. 53]. He admitted to being angry with the victim for
the drug charges but said that he “got over it”
and denied killing the victim for revenge [Id. at
64-65]. He claimed that he could not remember shooting the
victim [Id. at 66-67]. He remembered discussing a
job interview with her, and then he remembered being at the
mental health institution [Id. at 56-67]. According
to Petitioner, he “was feeling like [he] was in a dream
that whole morning” [Id. at 58]. At the
conclusion of trial, a jury convicted Petitioner as charged,
and he received the mandatory minimum sentence of life in
prison [Doc. 8-1 at 41-42].
direct appeal, the Tennessee Court of Criminal Appeals
(“TCCA”) affirmed the judgment of the trial
court. State v. Witherow, No. E2012-00131-CCA-R3-CD,
2013 WL 3353338, at *8-9 (Tenn. Crim. App. June 28, 2013)
(“Witherow I”). Petitioner did not seek
permission to appeal to the Tennessee Supreme Court.
filed a pro se petition for post-conviction relief on October
21, 2013 [Doc. 8-13 p. 26-38]. With the assistance of
appointed counsel, Petitioner filed an amended petition
raising numerous claims of ineffective assistance of counsel
[Id. at 42-44]. Following an evidentiary hearing,
the post-conviction court denied relief [Id. at
48-79]. On appeal, the TCCA affirmed the denial of
post-conviction relief, concluding that Petitioner failed to
prove that he received the ineffective assistance of trial or
appellate counsel. Witherow v. State, No.
E2017-00512-CCA-R3-PC, 2018 WL 1378626, at *1 (Tenn. Crim.
App. Mar. 19, 2018), cert. denied (July 18, 2018)
filed the instant petition on or about May 16, 2019, raising
the following grounds for relief, as paraphrased by
Ground 1: The evidence is legally insufficient to support the
2: The trial court erred by not admitting the prior
inconsistent statement of a witness as substantive evidence.
Ground 3: The trial court erred by denying a mistrial for
improper closing argument.
Ground 4: Trial counsel provided ineffective assistance by:
a. Failing to present the testimony of a favorable defense
b. Failing to adequately cross-examine a witness,
c. Failing to make an offer of proof for the prior
d. Inadequately presenting a defense of diminished capacity
and intoxication, and
e. Failing to ensure that Petitioner was lucid during trial.
Ground 5: Appellate counsel provided ineffective assistance
by inadequately arguing the sufficiency of the evidence in
the appellate brief on direct appeal.
Ground 6: The State violated the Fourth Amendment by
conducting an illegal search and seizure.
Ground 7: The State violated Petitioner's rights to due
process and a fair trial by presenting false testimony from
one of its witnesses.
[Doc. 1]. On June 10, 2019, the Court ordered Respondent to
file a response to the petition [Doc. 5]. Respondent complied
by filing its answer on August 30, 2019 [Doc. 17], and
Petitioner filed a reply to that response on or about
September 30, 2019 [Doc. 18]. This matter is ripe for review.
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). Moreover, this review
is limited to the record before the State court when it
adjudicated the federal claim. See Cullen v.
Pinholster, 563 U.S. 170, 181-82 (2011). Additionally,
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).
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 only
“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).