United States District Court, M.D. Tennessee, Columbia Division
WILLIAM L. CAMPBELL, JR. UNITED STATES DISTRICT JUDGE
Owens is currently serving a sentence of twenty years in
prison based on his April 12, 2012 conviction by a Lawrence
County, Tennessee jury of second-degree murder. On November
30, 2017, he filed his pro se petition for the writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.)
Respondent thereafter filed an answer to the petition (Doc.
No. 12) and the state court record (Doc. Nos. 10, 14), and
Petitioner filed a reply to Respondent's answer (Doc. No.
matter is ripe for the Court's review, and the Court has
jurisdiction. Respondent does not dispute that
Petitioner's petition is timely, that this is his first
Section 2254 petition related to this conviction, and that
the claims of the petition have been exhausted. (Doc. No. 12
reviewed Petitioner's arguments and the underlying
record, the Court finds that an evidentiary hearing is not
required. As explained below, Petitioner is not entitled to
relief under Section 2254, and his petition will therefore be
was indicted on August 27, 2010, for the first-degree murder
of his wife, Vicki Owens. (Doc. No. 10-1 at 9-10.) Following
a jury trial, Petitioner was convicted of the lesser included
offense of second-degree murder on April 12, 2012.
(Id. at 165-66.) The trial court sentenced
Petitioner to twenty years in prison. (Id. at
direct appeal, Petitioner argued that: (1) the evidence at
trial was insufficient to support his conviction; (2) the
trial court erroneously ruled on multiple evidentiary issues;
and (3) the trial court committed error in sentencing
Petitioner. (Doc. No. 10-24 at 9.) The Tennessee Court of
Criminal Appeals concluded that “the evidence, though
circumstantial, is sufficient to sustain Owens's
conviction for second degree murder” (Doc. No. 10-26 at
29); that no evidentiary errors had been committed
(id. at 16-28); and, that the sentence imposed was
not excessive. (Id. at 31- 34.) See State v.
Owens, No. M2012-02717-CCA-R3CD, 2014 WL 1173371 (Tenn.
Crim. App. Mar. 24, 2014). The Tennessee Supreme Court denied
discretionary review on September 25, 2014. (Doc. No. 10-28.)
filed a pro se petition for post-conviction relief on
November 5, 2014. (Doc. No. 10-29 at 6-20.) Following the
appointment of counsel and an evidentiary hearing, the
post-conviction trial court denied relief. (Doc. No. 10-29 at
38-43.) Petitioner filed an appeal from the denial of
post-conviction relief, raising the single issue of whether
his trial counsel was constitutionally ineffective for
failing to object to witness testimony on two occasions.
(Doc. No. 10-34 at 13.) The Tennessee Court of Criminal
Appeals affirmed the denial of post-conviction relief. (Doc.
No. 10-36); Owens v. State, No.
M2016-02068-CCA-R3-CD, 2017 WL 3836022 (Tenn. Crim. App. Aug.
31, 2017). Petitioner did not seek permission to appeal to
the Tennessee Supreme Court. He filed his pro se petition
under Section 2254 in this Court on November 30, 2017.
STATEMENT OF FACTS
Tennessee Court of Criminal Appeals noted, “[t]he
defense theory at trial was that the victim had committed
suicide, ” and the jury rejected this theory
“[d]espite the fact that there was conflicting
evidence” regarding whether she died by suicide or by
homicide. State v. Owens, 2014 WL 1173371, at *25.
That court's 2017 decision on Petitioner's
post-conviction appeal contains a concise summary of its more
expansive recitation on direct appeal of the state's
proof at trial. That summary is set out below, followed by
the summary of the defense's proof at trial contained in
the Court of Criminal Appeals' 2014 decision on direct
appeal, and the summary of the post-conviction evidence
contained in the 2017 decision.
the state's proof at trial,
[L]aw enforcement officers responded to a deceased-person
call at the Petitioner's residence on February 8, 2009,
where they discovered the victim's body sitting in a
rocking chair in the living room. A revolver was found near
the victim's body, and a single bullet had entered the
victim's right cheek, causing multiple wounds to her
face, shoulder, and arm. The Petitioner told the officers
that the victim had committed suicide, explaining that the
victim suffered with painful medical conditions and had
confronted him about having an affair. The victim suffered
from diabetes, arthritis, knee problems, and stress fractures
in her feet, for which she was undergoing treatment and
taking medications, but her health had never kept her from
working. A few days before her death, the victim told her
adult daughter that she believed the Petitioner was having an
affair. The victim had complained about the Petitioner's
infidelity on other occasions but had never appeared
Two days before the victim's death, while the
victim's mother and the victim were talking on the
telephone, the victim's mother overheard the Petitioner
tell the victim, “I bought myself a [.]357.... I'm
going to kill your God d*** ass.” The day before her
death, the victim was in a “very good” mood and
was buying Valentine's gifts. Also, the victim was
“really looking forward” to her son's wedding
in May and had requested vacation time from her employer to
attend the wedding in Florida.
The Friday before her death, the victim told one of her
co-workers, Melba McKey, that she was going to confront the
Petitioner about his affair. Ms. McKey had known the victim
for twelve years and had seen physical signs of her turbulent
marriage, including bruises on her neck and arm. When she
asked the victim about the bruises that resembled
fingerprints on her neck, the victim said that the Petitioner
had choked her. The victim's supervisor also had worked
with the victim for twelve years and had observed bruises on
the victim's wrists and arms on several occasions.
[Several years earlier, ] Deputy Donald Ward with the Giles
County Sheriff's Department was dispatched to the
Petitioner's residence on June 22, 2003, after a neighbor
reported a domestic disturbance between the victim and the
Petitioner. He observed that the victim had an injury inside
her mouth on her lower lip, a scratch under her left jaw, and
a swollen right wrist. Deputy Ward read a victim's rights
form to the victim and left a copy with her.
A Smith & Wesson .357 magnum revolver containing four
unspent rounds and one spent round was found near the
victim's body. The investigating detective, who
photographed the gun as he opened the cylinder, noticed that
the top chamber, located underneath the hammer, had an
unfired round and that a spent round was in the chamber to
the left of the unfired bullet. He explained that in order
for a live round to be underneath the hammer of the gun, the
trigger would have to be pulled again, which would cause a
second spent cartridge to be in the gun; or the hammer would
have to be manually pulled again; or the cylinder would have
to be taken out, rotated, and put back into the gun. A
Tennessee Bureau of Investigation (TBI) agent, an expert in
firearms examination and identification, examined the
revolver and noted that it had a large frame, making it
heavy, and that the spent cartridge would have ended up
underneath the hammer unless the gun was manipulated.
According to the agent, it would take human manipulation for
the spent cartridge to end up one cylinder to the left of the
During an interview with another TBI agent, the Petitioner
admitted that he had had several affairs and that, after the
victim's death, he “might have” left a
message on the answering machine of a woman he had previously
dated, asking if she would go out with him now that the
victim was dead. According to the Petitioner, the victim had
extensive pain in her arms and legs and had been prescribed
several medications. However, he never told the TBI agent
that the victim was suffering from depression or any mental
Although the medical examiner was unable to determine if the
victim's manner of death was homicide or suicide, he
noted that the gunshot wound was a close range wound that was
angled, rather than perpendicular to the surface, and opined
that the wound was unusual because of its location and the
direction of the bullet path. He said that the gun found at
the scene was heavy and would have been difficult for the
victim to hold to produce the type of injury she suffered.
Owens v. State, 2017 WL 3836022, at *1-2 (internal
defense's proof at trial was summarized by the Court of
Criminal Appeals as follows:
Charles Hardy, a special agent with the TBI who worked at the
Nashville Crime Laboratory, was declared an expert in the
field of serology and DNA analysis. Agent Hardy testified he
tested soap from the bathroom sink, a rag from the washing
machine lid, Owens's clothing, a hand towel from the
storage building, a washcloth from the northwest bathroom, a
swab from the bathroom sink, a washcloth and red rag from
Owens, and a revolver from the living room for DNA. He found
that the washcloth from the bathroom and the swab from the
kitchen sink contained Owens's blood. He stated that the
revolver contained such limited DNA that he was unable to
obtain a DNA profile that belonged to a particular
Linda Littlejohn, a special agent forensic scientist with the
TBI, was declared an expert in the field of microanalysis of
fibers. She stated that she looked at the fibers that were
collected from the victim's body and was asked to compare
these fibers to the fibers from the towels collected from the
garage and the victim's clothing. She stated that because
all the fibers collected contained white cotton fibers, she
was unable to determine the source of the fibers collected
from the victim's body.
Tony Beard, a corporal with the Lawrence County Sheriff's
Department, testified that he secured the crime scene until
Detective Parker arrived. Corporal Beard stated that he kept
a log of everyone who entered and exited the crime scene.
Robert Denton, a criminal investigator with the Lawrence
County Sheriff's Department, testified that he assisted
in collecting evidence and investigating the victim's
death. He remembered that Owens sat at the kitchen table and
appeared distraught at the scene. He did not observe Owens
washing his hands or wiping his face.
Jeffrey Smith, one of the paramedics who arrived at the
scene, testified that he noted the medications that had been
prescribed to the victim, which included Trazodone,
Gabapentin, Estradiol, Benicar, and Prevacid. He stated that
Owens gave him information about the victim's medical
history and showed him the victim's medicine bottles.
Smith stated that Owens talked to him about the victim's
leg and foot pain but did not tell him that the victim was
suffering from mental illness or depression.
William and Deborah Wilkerson, nearby neighbors, testified
that Owens was standing on his deck between 10:45 and 11:00
a.m. on February 8, 2009, and waved at them as they left for
church. Deborah Wilkerson stated that she attended the
victim's funeral and that Owens was “real[ly]
sad” and was crying.
Brian Robinson, the funeral director at Neal's Funeral
Home, testified that Owens paid for the victim's funeral.
He said that although there was a dispute over where the
victim would be buried, Owens relented and allowed the victim
to be buried at the location that her children had chosen.
Robinson stated that during the meeting, Owens was
“distraught[, ]” “visibly upset[, ]”
and his eyes were red because he had been crying.
David Brundage, a retired employee with the Illinois State
Police and the Marion County Forensic Services Agency, was
declared an expert in the field of firearm identification.
Brundage opined that if the gun had been fired by the victim,
it would have been with her right hand because the entry
wound was on the right side of her face. After looking at one
of the crime scene photographs, he noted that there was a red
substance, perhaps blood, on the fingers of the victim's
right hand. He said he was unable to review the test results
of the red substance on the victim's right hand because
no test had been requested. Brundage stated that he was
trained to mark the flutes of the cylinder of a revolver with
a permanent marker before examining it in order to clearly
identify the cartridge that was underneath the hammer. He
stated that releasing the cylinder catch would cause the
cylinder to move. After examining the autopsy report and
photographs, Brundage opined that the Smith & Wesson
revolver was fired one to three inches from the victim's
head and had been fired at an angle.
On cross-examination, Brundage acknowledged that once the gun
in this case was fired, the spent round would remain
underneath the hammer unless human manipulation caused the
cylinder to move. He also acknowledged that because the
cylinder on this gun was stiff, it was unlikely that
operating the release on the cylinder would cause the
cylinder to fly open and rotate, especially if an officer was
holding the revolver down when the cylinder was released.
Brundage agreed that another way to identify the cartridge
that was under the hammer was to carefully release the
cylinder and visually see where the spent round was located.
Daniel Smith, whose mother lived near Owens, testified that
he had a beer with Owens a couple of months after the
victim's death. Shortly thereafter, law enforcement came
to his house on a Saturday night and asked him to drive to
the police station. When he told them that he could not drive
because he was intoxicated, the officers drove him to the
station, where they “tried to put words in his
mouth” about Owens's involvement in the
victim's death. He stated that officers Beard and Bartrum
questioned him for approximately four or five hours before
releasing him. . . .
State v. Owens, 2014 WL 1173371, at *10-12.
post-conviction petition alleged that his trial counsel was
ineffective in failing to object to the introduction of
testimony concerning prior allegations of domestic violence,
when the trial court had ruled prior to trial that such
statements would not be admissible. The testimony at issue
came from two witnesses, Deputy Donald Ward and Melba McKey.
At the post-conviction hearing, trial counsel testified that
he filed twenty-one pretrial motions and eight motions in
limine after being retained in September 2010, in an ...