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Witherow v. Perry

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

November 8, 2019

GRADY PERRY[1], Warden, Respondent.



         Petitioner 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.


         Petitioner 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].

         At some 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].

         Without 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].

         According 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].

         The 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].

         Petitioner 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].

         On 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.

         Petitioner 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) (“Witherow II”).

         Petitioner filed the instant petition on or about May 16, 2019, raising the following grounds for relief, as paraphrased by Respondent:

Ground 1: The evidence is legally insufficient to support the conviction.

         Ground 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 witness,
b. Failing to adequately cross-examine a witness,
c. Failing to make an offer of proof for the prior inconsistent statement,
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.


         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). 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).

         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 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).


         A. ...

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